HL Deb 06 April 1982 vol 429 cc163-210

6.8 p.m.

The Lord Chancellor

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AMPTHILL in the Chair.]

Clauses 7 to 8 agreed to.

Clause 9 [Services to injured person's relative]:

The Lord Advocate (Lord Mackay of Clashfern) moved Amendment No. 18: Page 8, line 1, leave out ("subsection (2)") and insert ("subsections (1) and (2)").

The noble and learned Lord said: This is a minor drafting amendment which is needed to reflect the fact that subsection (3) is applicable to both subsection (1) and subsection (2) of this clause. I beg to move.

On Question, amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Assessment of damages for personal injuries]:

Lord Mackay of Clashfern moved Amendment No. 19: Page 8, line 32, leave out ("section 8") and insert ("section 81").

The noble and learned Lord said: This is another small drafting point to correct the reference in the Bill to the Employment Protection (Consolidation) Act 1978. If the amendment is not made, instead of referring to the right to redundancy payments, as is the intention, the subsection will refer to every employee's right to have a wages slip—or more properly, an itemised pay statement—showing detailed deductions and gross and net pay. I beg to move.

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clauses 11 to 13 agreed to.

Clause 14 [Amendment and repeal of enactments]:

Lord Mackay of Clashfern moved Amendment No. 20:

Page 10, line 33, at end insert (",and—

  1. (a) in section 4 of that Act the words "but this section is without prejudice to section 5 of this Act" shall cease to have effect, and
  2. (b) in section 6 of that Act—

(i) in subsection (1) for the words "section 5 of this Act" there shall be substituted the words "this section", and (iii) after subsection (2) there shall be inserted— (3) This section applies to any action in which, following the death of any person from personal injuries, damages are claimed—

  1. (a) by the executor of the deceased, in respect of the injuries from which the deceased died;
  2. (b) in respect of the death of the deceased, by any relative of his.".").

The noble and learned Lord said: This is a moderately complex drafting amendment to ensure that the repeal of Section 5 of the Damages (Scotland) Act 1976 is properly reflected in Sections 4 and 6 of that Act. It first removes a redundant reference to Section 4 and then also takes the two categories of action specified in subsection (1) of Section 5—namely, where damages are claimed by the executor of the deceased in respect of the relevant injuries or in respect of the death of the deceased, by any relative—and incorporates them as a separate subsection of Section 6. It should then be clear that the provisions in the section limiting the total amount of liability relate only to the categories in the new subsection. In effect, the amendment does no more than restate Section 5(1) of the 1976 Act in Section 6. I beg to move.

On Question, amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15 [Interest on debts and damages]:

The Lord Chancellor moved Amendment No. 21: Page 10, line 36, leave out ("sections") and insert ("section").

The noble and learned Lord said: If I may, I will speak to Amendments Nos. 21 and 22 and Nos. 58 to 70A inclusive. It is rather a formidable list, but really there is nothing much in them. The amendments to Clause 15 and Schedule 1, to which I am speaking, shorten and clarify the new scheme for awards of interest in the High Court and the county courts. As regards the amendments to Clause 15, these are consequential upon the changes made in Schedule 1, whereby one section is inserted in the Supreme Court Act 1981 and one in the County Courts Act 1959, instead of two in each, as at present.

The amendments to Schedule 1 on page 40, at lines 6, 9 and 31, produce a very much simpler and shorter version of subsection (1) of the new Section 35A which is to be inserted in the Supreme Court Act 1981.

The amendments on page 40 at line 34 and on page 41 at line 14 incorporate the substance of Section 35B within the body of Section 35A in a much simpler, shorter and clearer form. Page 41, lines 17 to 38, which are taken up with Section 35B, are then ommitted.

The amendments starting at Page 41 at line 42 and ending with page 43 at lines 4 to 27 remodel the new Section 97A which is to be inserted into the County Courts Act 1959, so as to give it the same shorter, clearer and simpler form as is given to Section 35A of the Supreme Court Act 1981 by the amendments I have already referred to. I beg to move Amendment No. 21.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 22: Page 11, line 1, leave out ("sections") and insert ("section").

On Question, amendment agreed to.

Clause 15, as amended, agreed to.

Clause 16 [Interest on lump sums in matrimonial proceedings]:

On Question, Whether Clause 16 shall stand part of the Bill?

Lord Renton

I have a very short point. I wonder whether my noble and learned friend can help. Clause 16 deals with the interest which is payable on sums which the court orders should be paid into court. They would be lump sums. I believe it has always been the practice so far that only simple interest should be paid, but, in these days when interest rates are fairly high and when the sums are quite considerable, and there may be a delay in the payment into court, I am wondering whether there is not a case for payment of compound interest.

The Lord Chancellor

This has been considered, and I think I am right in a saying that we thought there was not a case for the payment of compound interest.

Clause 16 agreed to.

Lord Stanley of Alderley moved Amendment No. 23: After Clause 16, insert the following new clause:

(Certain contract debts to carry interest.

STATUTORY INTEREST ON CERTAIN CONTRACT DEBTS

.—(1) A relevant contract debt shall carry simple interest by virtue of this section and in accordance with sections (Relevant contract debts etc.) to (Assignments etc.) below.

(2) In this Act "statutory interest" means interest carried by virtue of this section.").

The noble Lord said: With the permission of the Committee, I should like to speak to Amendments Nos. 23 to 31. Last week, I felt rather like Daniel having a look at the lion's den of noble and learned Lords. I was prevented from plunging in by my noble and learned friend the Lord Chancellor. Today I intend to go in, because I hope very much that—like Darius, I think—the Government will be converted to my views on the merit of my amendment, which I must tell them has much more logic and lies much more easily in the Bill than the one I moved last Tuesday. I think my noble and learned friend was saying last Tuesday that my amendments then did not lie very easily in the Bill, with which I have partly to agree.

The purpose of this amendment is two-fold: first, to place the small trader on more equal terms with the large or multinational firm with regard to interest on debts; and, secondly, to keep the courts empty or at least free them from having to deal with endless cases of debt. The Law Commission in its Report No. 88 on interest in June 1978, suggested this course of action, and I was interested to read my noble and learned friend's speech at Second Reading, when he referred to the problem of interest in column 30. He said that the Bill would, "remedy what I regard as a serious injustice".

However, for reasons that are not apparent—they may be apparent to my noble and learned friend and other noble Lords—the Bill in Schedule 1, Parts I and II goes only half way to implementing the Law Commission's report. The result of this half-baked approach, which is very common with any half-baked approach in life, will be to place the small trader in a worse position than he was before, in that he will have to take his debtor to court to get payment of interest on his overdue account. This will put more people before the courts—a bad idea, as I am sure my noble and learned friend would agree. Worse still, the large company is much happier in court, with all its legal resources at its disposal, than I am with none, and with no time and no experience anyhow. I go so far as to say that if the Government cannot go along with the whole of the Law Commission's report, which is what my amendment achieves, we should be better off scrapping Clause 15 altogether. We may have to think about that later if my noble and learned friend cannot help me.

At this stage, I will not bore the Committee with the details of my amendments. I know that my noble and learned friend understands them so much better than I. I truly hope that the Government will accept in principle my case, if not my particular amendment. My amendment would mean that there would be a statutory right to interest on overdue accounts without the need to appear before the court. The length of the amendment is due, if I may say so, to the lawyers having a field day over what is to me a comparatively simple point. The amendment ties up the knots. For instance, it spells out, among other points, what contract debts are covered, the position of the debt where there is a statutory provision, the position of tenants under leases, the position of bills of exchange, the tax provision problems, how why and at what rate interest shall be charged. On that matter, I should say to my noble friend Lord Renton that we have gone for simple interest and not compound interest, though we have argued this on compensation and, sadly, have always lost it.

I referred earlier to the amendment correcting the Bill's half-baked approach to the problem. It might have been better if I had said that it appears to me that my noble and learned friend started darning this particular sock, but then left a gaping hole like a potato in it. Therefore, I very much hope that my noble and learned friend will be encouraged by my amendment to take up again his needle and thread and accept the principle of my amendment which, at the end of the day, would help me as a farmer and small trader to be more efficient and effective by giving me—I repeat—the right to interest on overdue accounts, and prevent me from filling his courts in order to get it. I beg to move.

Baroness Sharples

I also should like to draw the Committee's attention especially to the section of our amendment under which the right to statutory interest on unpaid contract debts would he treated as if it had been provided by the contract. That should, as my noble friend has said, help the small trader who very often has great difficulty in obtaining payment, especially from large companies and understandably, as my noble friend has said, they are very reluctant to go to court. They simply do not have the time. They cannot afford it. This amendment would help them and it seems fair to all concerned, because very many debtors do not settle their accounts before 90 days. That is quite intolerable because it affects the small trader's cash flow.

At the moment there are a number of small traders who, on their invoices, state that a surcharge of 2½ per cent. per month may be added to overdue accounts. I happen to know that that produces results—I have heard from people who have been in touch with me. However, it has no standing in law. I believe that our amendment would assist small traders and, as my noble friend said, the more people we can keep out of the court seeking redress, surely the better?

Lord Renton

I should like to give a brief word of support to my noble friends. There is no need for me to repeat the arguments which they have put forward. However, I should just like to add that there has been very careful consideration of this matter by the Law Commission presided over by one of Her Majesty's judges. I think that we are entitled to know why it is that, in producing this Bill, my noble and learned friend has been somewhat selective and has not accepted the whole of the package which the Law Commission put forward. There may well be a good reason for that, but, unless there is, I would have hoped that this is a matter that perhaps my noble and learned friend would wish to consider further.

Lord Mishcon

I wonder if, before the noble and learned Lord deals with the arguments, I may add just a word in regard to this amendment which certainly we on this side would be happy to support? We have in mind the small trader and we know of conditions which have existed over the past few years—and which certainly are current—where, of course, the cash flow is life and death very often to the small trader. All of us have looked with the greatest of apprehension at the number of failures that there have been of small companies and small businesses. Many happen, of course, every week. The statistics from the beginning of this year are especially alarming in that connection.

This does seem to be a non-controversial item and one bears in mind with the greatest of sympathy and understanding what the noble and learned Lord said about the hoped for passage of this Bill which might be interfered with if we dealt with controversial matters. I cannot conceive with respect—if I may repeat myself —that this is a controversial item. It seems to clear up the matter of interest. if I may say so, as any decent practising lawyer would, we sympathise completely as a profession with those who wish to keep out of the courts, and a decent practising lawyer sees that that happens if ever he can.

Lord Monk Bretton

I should like to say a few words in support of the amendment because I believe that this matter needs the most careful consideration of the Committee. I think that the smaller firms will always remain afraid to sue in any case and, therefore, they will be afraid again to sue for interest under the clause that is in the Bill, as my noble friend Lord Stanley pointed out, because they fear for their loss of goodwill and loss of customers. I also believe that this is a bad thing for the public because, faced with those who do and do not pay, what does the trader do?—he covers himself. The good payer in the end has to pay for the bad payer. For that reason I believe that it would be very much better for there to be statutory interest on debts. I know that there is, of course, a vested interest—the vested interest of those who do not pay. But it cannot be said that this is good for efficient trade.

I understand that in the United States they have statutory interest on debts and that that is also the case in most European countries. So, bearing in mind the inflationary experiences which we have had, it seems that this matter is rather overdue for remedy and should be dealt with. I think that it is the job of the Committee to consider supporting the smaller firms as regards this matter. Let us now, if we possibly can, make some progress for the good of all because so many other countries have this law. Finally, I should like to raise one other matter because we are dealing here with a long series of amendments. I wanted to hasten to say that I believe that it is much simpler in practice than it looks and that in fact it could work well.

Lord Hylton

If it were helpful I could provide evidence, given a certain amount of notice, of both large commercial companies, whose names are very well known to the public, and of Government departments, who regularly take 90 days and sometimes a little more to settle their accounts. On those grounds I should like to support the amendment and I very much hope that the Government will take it very seriously and give it their full consideration.

6.29 p.m.

The Lord Chancellor

My noble friend Lord Stanley of Alderley likened himself to Daniel in the lions' den. I am afraid that I am cast for the role of Darius. If my noble friend will recollect, Daniel emerged unscathed from the lions' den. He emerged unscathed because the king on the following morning said, "Daniel, come forth". I am afraid that I am cast for the role of saying to Daniel, "Come forth". I must tell my noble friends that I have given the most careful consideration to all these permutations and combinations of what I might and might not have put into the Bill. I got the maximum out of my colleagues on the terms which it is now becoming rather wearisome to repeat. But the fundamental condition upon which I got anything was that I should not generate too much controversy either between parties or between vested interests of one sort or another.

There are, in fact, as we have heard, a number of quite powerful arguments for the provision of interest on simple contract debts. The draftsmanship, of course, is impeccable because I think it comes from the Law Commission and not from my noble friend. But I cannot take carriage of it on this Bill, and I really must appeal for support to the Committee about the line of policy which I have been trying to carry through because I do need this law reform. I say this particularly to the noble Lord, Lord Mishcon, but I say it also to my noble and learned friends and my noble kinsman on the Cross-Benches. Being the guardian and the trustee, as I think I am, of the work of the Law Commission, I always try to see what I can do to legislate on Law Commission reports. Naturally enough, the matter was processed through various departments and various consultations.

The fact is that a number of institutions—and I shall enumerate them—were very much against the idea. Others were very much in favour of the idea, and neither would yield to the other. Very much against the idea were the CBI—and it would take a great deal more than me to overcome them (under their leadership, we hear that they are always spoiling for a fight with the Government)—the National Chamber of Trade, the Federation of Civil Engineering Contractors and accountancy bodies. The same was true of most, though not all, of the consumer organisations.

That is what I should have to face if I were to include this particular set of provisions in the Bill. If I had to face that, in my opinion, I should quite certainly lose the Bill. I do not in the least take sides in this matter—at least, I may do, but I shall try to conceal the side that I take.

On the other side there are, equally, a number of very powerful and very reputable bodies: the National Farmers' Union—and I rather fancy that my noble kinsman may have been stimulated into oratory from that quarter—the Association of British Chambers of Commerce and, as the noble Lord, Lord Mishcon, probably knows, the Law Society. They were all very much in favour of the Bill.

It is perfectly fair to say there are very powerful arguments on both sides. But, having put it to my colleagues and taken their advice, the Government's decision was that I could not include this, at any rate in this Bill. As a matter of fact, as long ago, I think, as 1980, there was a public announcement by the Government that the policy could not be accepted. But I do not want to dogmatise on this subject, because my humble function in promoting this Bill has been to get the maximum amount of law reform that will go into the quart pot that I was given. This enormous set of amendments, which will be very highly controversial —though not, I think, on party lines at all—will, in fact, overload it.

I am sorry to have to say that to my noble friend, because I know how very unsatisfactory this sort of answer is when it comes from Government Ministers. But it is given in good faith; it is given firmly, and I must say that I am not prepared to accept the theory that this is in any way half-baked. We have taken the proposals of the Law Commission, in so far as they deal with the subject of the Law Reform (Miscellaneous Provisions) Act 1934, and sought to implement them. It is true that we have not accepted the other and controversial proposals, the size of which can only be seen by looking at the Marshalled List, because it is quite clear as a matter of parliamentary fact that, if you put these enormous clauses in this Bill, the opportunities for those who dislike them to delay the Bill by amending them and resisting them, stage by stage and line by line, will be almost insuperable.

Therefore, I say to my noble friend, "Daniel, come forth. You may have another day, but please don't stay in the lions' den and blame me entirely for not accepting this very formidable additional burden to this already monstrously long and complicated Bill". I say that without passion because it may be that at some stage or another I have shown a degree of sympathy with the thinking behind the amendments, but I simply cannot do it. So far as I am concerned, that is all I can tell the Committee. I can only apologise for being so intransigent, but there it is.

Lord Renton

I am sure that we sympathise with my noble and learned friend and are grateful to him for his explanation of his own problems. But, speaking for myself, my sympathy would be very greatly increased if he could tell us, in broad terms, what were the grounds of objection on the part of the CBI and others whom he named who did object. I would just add the relevance of our knowing that: it is because, although the matter was considered rather controversial outside Parliament, I tend to agree with the noble Lord, Lord Mishcon, who indicated that in your Lordships' Committee that it would not be controversial to accept these amendments, and I find it very hard to believe that it would be controversial in another place. If my noble friend has to accept clauses which occupy another page or two and it is found that they are not controversial, I should have thought that he would be doing his Bill no harm, nor spoiling its chances of getting onto the statute book.

The Lord Chancellor

I do not want to enter into a long argument about the desirability or otherwise of charging interest on simple contract debts. But, broadly speaking, the departments of Government sponsor these various bodies and put forward the arguments which those bodies themselves have already embraced. I can assure my noble friend that the result of pressing this would be exactly what I have said, neither more nor less.

But the charging of interest, where you have not agreed to pay it or where terms have been that you pay a given sum of money, and not more, obviously presents difficulties of principle, as it always has all the way through history. The fact that a certain number of my noble friends, my noble kinsman and the very eloquent spokesman from the Labour Party Front Bench—who also is not uninfluenced by the opinions of the Law Society—take a contrary view, I am afraid cannot move me in what is a firm and careful decision after estimating the degree of controversy that there would be.

I am bound to say to my noble friend, while I am still asked, that the theory that you bring fewer people into court by charging them more before they get there, is not one to which, as a somewhat experienced practitioner in the county court, one might immediately assent. It may be true, but I do not think that it is self-evidently true, and I am bound to say that I am not sure that you will assist the small trader quite as much as he thinks. My experience, certainly since I have been Lord Chancellor, is that the small trader is complaining that he cannot enforce even the judgments that he gets. This is one of his principal woes when it comes to sending in the bailiffs on a county court judgment. The fact that they are sent in for a little bit more will not, I think, assist him, unless there are the assets to support the judgment debt. But I must firmly say to the Committee that I cannot do it for them. It is no good my pretending that I can, because I cannot.

Lord Mishcon

I add one more plea to the noble and learned Lord, and, if that plea fails, then I, personally, do not intend to worry him further. If I may say so, I do not think that it is merely a question of small businesses and small creditors finding themselves in difficulty in enforcing judgments. I think that it will be a very salutory deterrent to debtors in regard to delaying the payment of their due obligations if they know that they are running up interest—and at the moment they have no such deterrent at all—and that they will have to go to a solicitor, or try to fill up the form themselves, and then go through the process, as the noble and learned Lord knows so very well, of obtaining a judgment before interest under this Bill falls.

I make two other quick observations to the noble and learned Lord. First, he knows so much better than I ever shall that, if one is trying to get an Administration of Justice Bill through Parliament, one will always be told that the difficulty will be there if there is anything controversial in it. What frightens me is the fact that if an opportunity is not taken this time the noble and learned Lord's eloquence will be repeated on another occasion, not because he wants to say these things, but because one has to say these things. Alteration of our law and our procedures does not have a high priority in the normal government programme.

The final thing I say in an endeavour to persuade the noble and learned Lord along the lines that the noble Lord, Lord Renton, mentioned, is this: if the Committee showed its support of this amendment would it be so terribly difficult if, in another place, some very definite opposition was voiced, to allow the Bill to progress by a withdrawal at that stage of this clause? I personally feel with the noble Lord, Lord Renton, that it is not likely that, although there may be opposition outside, there would be parliamentary opposition of any worthwhile force. I would appeal to the noble and learned Lord to see whether this is not a proper way of dealing with it. He compared himself with Darius. I would call him a most friendly lion, who growls but does not like hurting anybody, and it is in that sense that I appeal to him.

Lord Lloyd of Kilgerran

May I presume, in effect, to thank the noble and learned Lord for being so frank with the Committee on the difficulties that are facing him. May I ask whether the noble and learned Lord would take this matter back and reconsider the eloquent speech made by the noble Baroness, Lady Sharples, a few minutes ago? She directed her attention to the serious matter of small arms, and the noble Lord, Lord Mishcon, has rightly said that it would be a deterrent to the particularly large firms who do not in practice pay up their debts to the small firms.

The noble and learned Lord referred to the difficulties arising in the county court on the enforcement of directions given by that court. That is not the matter that the noble Baroness raised; it is the general question that small firms do not want to go to court for various reasons, but that the introduction of some kind of measures of this kind for the small firms would act as a deterrent to the larger firms who, as we all know in business practice, are very dilatory in paying their bills.

The Lord Chancellor

I can only say I may be a friendly lion, but my family coat of arms is three boars, and I fancy that this may be the third time that I may be speaking in this debate. I am sorry to say that I have absolutely no room for manoeuvre at all. If it is any comfort to the noble Lord, Lord Mishcon, this is not the first time I have held this debate. The other debates have all been in private. I, of course, am simply the guardian, as it might be, of the Law Commission's reports and I should like to legislate them. This is my general policy, and I do not conceal my desire to do so. But the departments whose business it is to represent businesses take a very different view from the Law Commission about the popularity or feasibility of this move.

If I thought there was any chance of getting my colleagues to alter a decision, which is a Government decision, I would promise to take this back, and of course I shall communicate with other departments and other colleagues as to the views expressed. They have their sympathies too with small businesses which have always been close to the heart of the party of which I am a member, but I assure the Committee that I have no room for manoeuvre here at all.

Therefore, I stand, a friendly lion or the third of three boars heads erased, which I am afraid is what they are called by the heralds, and say that I simply cannot do very much about it. But I will, of course, report to my colleagues and see if there is any sort of consensus behind it, but I can assure the Committee that what I have said is the whole truth so far as I can see it.

Lord Stanley of Alderley

I shall not be able to answer all the questions. Probably in any event I would not know the answers. However, I shall try to answer some of them. First, the whole Committee is agreed that the present state of the law makes it look an ass in so far as there is vagueness in it. The noble Lord, Lord Mishcon, brought this out, and so did my noble friend Lady Sharples.

Like the noble Lord, Lord Mishcon, I have to say that this problem is not going to go away. I can assure my noble and learned friend that it will come up in another place. Perhaps I could suggest that it might be nicer and kinder if he accepted it in principle here, on the principle that perhaps the devil you know, or the lion you know, or the Daniel you know, is better than the one you do not know, because it is not just going to disappear like that.

My noble and learned friend referred to his colleagues not being convinced that this is the right course. I have great sympathy when colleagues do not agree with you—I am not saying that the noble and learned Lord had a different view—but they were supporting a lot of rather extraordinary people from what I could understand: among other people, the Consumers' Association, the large institutions, and the CBI. For what it is worth, I tried to get through to the CBI to ask what would they think about it and whether they would appear. I have not heard one word in your Lordships' House. At the end of the day, it is surely our job, as Parliament, to decide and not the Consumers' Association, or whatever.

The other point, which it might be unkind to make, is that when it comes to matters mercenary, I have no faith in the Government—not this particular Government, but any Government in matters mercenary. This is a mercenary matter. It is probably why I am rather excited about it. There is nothing like a bit of gold to get a farmer going. This is in our court and not the Government's court.

I am not quite sure what I am going to do. Would my noble and learned friend say again that he would pass on these remarks that have been made in the Committee today about the reservations on this Bill and the support that the amendment has? I have not heard one person speak against my amendment except the noble and learned Lord. I am so tempted to divide the Committee today. I have a feeling I might win. I have seen that happen before, but I have accepted an assurance from the Front Bench that they will look at it again and I have come back later and lost it. It was probably my fault. Before I make up my mind, would my noble and learned friend mind saying just once again that he would put these points very forcefully to his colleagues? Then, perhaps, I would feel inclined to withdraw it at this time.

The Lord Chancellor

I thought I had said exactly that: that I would report the views which have been so eloquently expressed both by my noble friend and from other quarters in the Committee. I am less impressed than he is by the fact that other people who take the opposite point of view have not been so forceful or so eloquent, because they have got exactly what they want, and they know that the Government have come to the conclusion that this Bill cannot contain this particular provision.

I will, of course, do exactly what my noble friend has asked me to do. I will pass it on. But I think that they must take it that at the moment I am not making any other promise than that. I will say frankly to the Committee that of course if another place takes identically the same view as my noble friend, it may be that the Government would yield to the elected Chamber, I do not know, but I would ask for the support of the Committee. I am trying to pilot this rather monstrous piece of legislation through. I have applied my mind as honestly as I can to the problems involved. Having said that, I would do just what my noble friend has asked me to do without any further commitment; I hope Daniel will come forth and emerge from the lion's den unscathed.

Lord Stanley of Alderley

I am obliged to my noble and learned friend for that reply and if he puts his case so charmingly and forcefully to his colleagues, I am sure that by Report or Third Reading he will have something more pleasant to tell me and I shall not have to take up the cudgels again. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 to 31 not moved.]

Clause 17 [Relaxation of formal requirements for making wills]:

6.51 p.m.

The Lord Chancellor moved Amendment No. 32:

Page 11, line 42, at end insert— ("(aa) it appears that the testator intended by his signature to give effect to the will; and").

The noble and learned Lord said: This amendment introduces an additional formal requirement for the making of a valid will. In accordance with the recommendations of the Law Reform Committee, which are not fully implemented in the present clause, the amendment makes it clear that the will should be admitted to probate only if it is apparent on its face that the testator intended his signature to validate it. The point was well raised by the noble Lord, Lord Mishcon, on Second Reading and it has, I am told, the support of the Law Society, so I am grateful to the noble Lord for raising it and I have done my best to give effect to what was said.

Lord Mishcon

I, in turn, am most grateful to the noble and learned Lord.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 33:

Page 12, leave out lines 4 to 6 and insert— ("(c) in the presence of the testator each witness attests and signs the will or acknowledges his signature,").

The noble Lord said: This is a probing amendment. I am not sure—indeed, some of my professional colleagues are not clear—whether paragraph (c) of the new Section 9 allows one witness to sign and the other to acknowledge a previous signature. Only so that it is realised by the Committee that this is a very real point I shall read from paragraph 2.11 of the 22nd Report of the Law Reform Committee on the making and revocation of wills, where the case was cited of re Coiling: We would however like to prevent the recurrence of a case such as re Coiling [1972] 1W.L.R. 1440. In that case the testator, who was a patient in hospital, asked a nurse and another patient to witness his signature but, while he was signing and before he had completed his signature, the nurse was called away to attend to another patient. The testator nevertheless continued signing and the other witness then signed. When the nurse returned, the testator and the other witness both acknowledged their signatures and the nurse then added her signature. The will was held to be invalid and some have thought that the invalidity resulted from the failure on the part of the testator to sign in the simultaneous presence of the two witnesses. However, in our view, it was not the requirement of simultaneity which invalidated the will in re Coiling because in that case the testator did acknowledge his signature in the presence of both witnesses. What invalidated the will was the requirement that both the attesting witnesses must subscribe after the operative signature or acknowledgement of the testator". The real purpose of this probing amendment, therefore, is to see whether re Coiling is covered and whether the wording of the clause, in the view of the noble and learned Lord, allows one witness to sign and the other to acknowledge, if that be necessary.

The Lord Chancellor

I can undertake to consider the point. The text as it stands is probably ambiguous in the sense implied by the noble Lord, Lord Mishcon and his reference to re Coiling is entirely apt. I am told that the amendment does not carry matters much further and itself appears to be ambiguous. But I think that both the text and the amendment could be improved by careful drafting and if the noble Lord would agree to withdraw the amendment, I will try to see whether I can come back with something better on Report.

Lord Mishcon

In view of that reply, I most willingly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17, as amended, agreed to.

Clause 18 [Effect of marriage or its termination on wills]:

Lord Mishcon moved Amendment No. 34: Page 12, line 38, at end insert ("or as executor and trustee of the will").

The noble Lord said: This, too, is in the nature of a probing amendment. The new Section 18A which is inserted by Clause 18(2) is obviously designed to cut the former spouse out of the will as a beneficiary or executor. Presumably it is not the intention to cut out other references to the former spouse; for instance, an appointment of him or her as trustee or guardian, or a provision giving him or her power of appointment, although it may be for consideration whether a distinction should be drawn between a general and a special power of appointment, as the former could be equated to a beneficial interest.

A will creating a trust normally provides not only for the appointment of executors but the appointment of executors and trustees of the will, and that is done at the same time. In such a case, one feels there may be some doubt about the position of a former spouse appointed, for example, as an executor or trustee if the marriage is terminated. Perhaps the noble and learned Lord could explain the thinking behind the drafting of the provision. That is why I tabled the amendment: is it intended that an executor and trustee—I give that merely as an example—by way of an appointment of a former spouse would mean that she would, under the clause, drop both appointments, or would it be only that of executor and not of trustee?

The Lord Chancellor

The best and shortest thing I can say to the noble Lord is that I accept the amendment.

Lord Mishcon

I, in turn, am most grateful.

On Question, amendment agreed to.

Clause 18, as amended, agreed to.

Clauses 19 to 22 agreed to.

Clause 23 [Deposit and registration of wills of living persons]:

The Lord Chancellor moved Amendment No. 35: Page 15, line 29, after ("below") insert ("(a)").

The noble Lord said: I will, with permission, speak at the same time to Amendment No. 36. These are minor technical amendments which place the registering authorities under a duty to register not only wills which have been deposited with them but also wills in respect of which registration is requested under Article 6 of the Registration Convention. Thus, a small omission is repaired.

Lord Mishcon

While I have nothing to say about the amendment, perhaps the Committee will permit me to comment—it will save time if I make the point now—that I happen to know that the noble and learned Lord's department has received some submissions on all the clauses relating to wills from the Law Reform Committee of the Holborn Law Society and a memorandum from the Law Society itself. Instead of reading out memoranda and referring to technical points which might make me look much more learned than I am, it would be more sensible if I asked the noble and learned Lord whether his department has received the memoranda and whether, in his kindness, he is giving consideration to the points that have been raised, and perhaps they can be dealt with between now and Report.

The Lord Chancellor

I have received memoranda. They are under consideration and I will write to the noble Lord about the results of the lucubrations of those who know more about these things than I do.

Lord Mishcon

I am most grateful.

On Question, amendment agreed to.

The Lord Chancellor: moved Amendment No. 36:

Page 15, line 30, at end insert— (";and (b) any other will whose registration is requested under Article 6 of the Registration Convention.").

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clause 24 [Designation of Principal Registry m national body under Registration Convention]:

The Lord Chancellor moved Amendment No. 37:

Page 16, line 12, leave out from ("Registration") to end of line 21 and insert ("Convention, and shall accordingly have the functions assigned to the national body by the Registration Convention including, without prejudice to the general application of the Convention to the Principal Registry by virtue of this section, the functions—

  1. (a) of arranging for the registration of wills in other Contracting States as provided for in Article 6 of the Convention;
  2. (b) of receiving and answering requests for information arising from the national bodies of other Contracting States.").

The noble and learned Lord said: This is a technical amendment, which substitutes a wider definition of the functions of the national body for the narrower one presently found in Clause 24. Clause 24 designates the Principal Registry of the Family Division as the national body under the Registration Convention, and provides that it is to have the functions assigned to that body by Article 3 of the convention. However, the description of the functions presently found in subsection (2) is far too narrow, as other actions apart from those specified will need to be performed by the Principal Registry. The amendment therefore introduces a more widely drawn definition of these functions. I beg to move.

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Clause 25 [Regulations as to deposit and registration of wills etc.]:

The Lord Chancellor moved Amendment No. 38:

Page 16, line 26, leave out from ("conditions") to end of line 31 and insert ("for the deposit of a will; (b) as to the manner of and procedure for—

  1. (i) the deposit and registration of a will; and
  2. (ii) the withdrawal of a will which has been deposited; and
  3. (iii) the cancellation of the registration of a will; and").

The noble and learned Lord said: In moving Amendment No. 38, I should like to speak to this amendment and Amendment No. 39 together. These are technical amendments consequential on the amendment to Clause 23, which places the registering authorities under a duty to register wills deposited abroad where registration is requested in this country under Article 6 of the convention. Clause 25 provides for the making of regulations as to the deposit and registration of wills. As it is drafted at present, it does not allow for the making of regulations governing the registration of wills in this country which have, in fact, been deposited abroad. The rule-making powers have therefore been re-cast to take this into account and have also been simplified. I beg to move.

Lord Mishcon

I appreciate, as will the Committee generally, the force of the convention, but will the noble and learned Lord in his kindness consider the whole advisability and inadvisability of the registration of wills made by testators in this country?

The Lord Chancellor

I shall certainly take back that point and write to the noble Lord. I thought that it was now rather the popular thing to think that it was advisable, but I shall certainly consider it.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 39: Page 16, line 34, leave out from ("Convention") to end of line 37.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 40: Page 17, line 1, leave out ("Regulations as to the deposit and registration of wills") and insert ("Any such regulations").

The noble and learned Lord said: This is another technical amendment. It removes the apparent distinction presently drawn by Clause 25(3) between regulations as to the deposit and registration of wills and some other, unspecified, type of regulations. Clause 25 provides for the making of regulations as to the deposit and registration of wills. The opening words of subsection (3) appear to draw a distinction between two different kinds of regulation. No such distinction is in fact made in the Bill. All regulations made under this clause will be concerned with the deposit and registration of wills, and the amendment makes that quite clear. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 41: Page 17, line 17, leave out ("under subsection (3)(c) above") and insert ("for Northern Ireland").

The noble and learned Lord said: This is another technical amendment. It corrects the mis-statement in Clause 25(6) that regulations in respect of Northern Ireland are made under subsection (3)(c) of the clause. Subsection (6) of the clause provides that regulations in respect of Northern Ireland shall be statutory rules for the purposes of the Statutory Rules (Northern Ireland) Order 1979. All regulations made under the clause are in fact made under subsection (1), not subsection (3)(c). Furthermore, subsection (6) is concerned with Northern Ireland and it is therefore correct to replace the reference to subsection (3)(c) with a reference to Northern Ireland. The amendment has that effect. I beg to move.

On Question, amendment agreed to.

Clause 25, as amended, agreed to.

Clause 26 [Fees as to registration in Scotland]:

Lord Mackay of Clashfern moved Amendment No. 42: Page 17, line 38, after ("Registers") insert ("of Scotland").

The noble and learned Lord said: This is a minor amendment to correct the reference to the Keeper of the Registers of Scotland, so that he is given his full and proper designation. I am sure that your Lordships' Committee will be glad to do that. I beg to move.

On Question, amendment agreed to.

Clause 26, as amended, agreed to.

Clause 27 agreed to.

Clause 28 [International wills—procedure]:

The Lord Chancellor moved Amendment No. 42A: Page 18, line 18, leave out ("made in accordance with") and insert ("certified by virtue of").

The noble and learned Lord said: This is a minor technical amendment correcting the mis-statement made in Clause 28(3), as now printed, that international wills are made in accordance with subsections (1) and (2) of the same clause. They are in fact made in accordance with the annex set out in Schedule 2 to the Bill. I beg to move.

On Question, amendment agreed to.

Clause 28, as amended, agreed to.

Clauses 29 to 31 agreed to.

Clause 32 [Jurisdiction in relation to counterclaims etc.]:

The Lord Chancellor moved Amendment No. 42B: Page 19, line 40, leave out ("this") and insert ("that").

The noble and learned Lord said: This amendment is consequential. It corrects a mistaken reference to the new Section 75D, which is inserted by Clause 32, by changing it for a reference to Section 75C(1)(c). The error came about because Section 75D was originally a subsection of Section 75C. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 42C: Page 20, line 2, leave out second ("the") and insert ("and").

The noble and learned Lord said: This amendment corrects a small slip. The Bill refers to "set-off the counterclaim". It should read, "set-off and counterclaim". I beg to move.

On Question, amendment agreed to.

Clause 32, as amended, agreed to.

Clause 33 agreed to.

Clause 34 [Transfers from High Court to county court]:

The Lord Chancellor moved Amendment No. 43: Page 20, line 37, leave out from ("amount") to ("after") in line 38 and insert ("exceeding £5,000 must be enforced in the High Court)").

The noble and learned Lord said: I think that I can describe this amendment as being purely drafting. It corrects the description, given in Clause 34(3) of the effect of Section 1(2)(c) of the Charging Orders Act 1979. I have a slightly longer explanation if it is demanded. I beg to move.

On Question, amendment agreed to.

Clause 34, as amended, agreed to.

Clauses 35 to 38 agreed to.

Clause 39 [Investment of money transferred to National Debt Commissioners]:

7.10 p.m.

The Lord Chancellor moved Amendment No. 44: Page 23, line 28, leave out ("section 38") and insert ("subsection (1)").

The noble and learned Lord said: This amendment corrects another erroneous reference. It is a reference in subsection (2) of Clause 39, which refers to Section 38 of the Bill, and it inserts instead the correct reference, which is to subsection (1) of Clause 39. I beg to move.

On Question, amendment agreed to.

Clause 39, as amended, agreed to.

Clauses 40 and 41 agreed to.

Clause 42 [Common investment schemes]:

The Lord Chancellor moved Amendment No. 45: Page 24, line 43, at end insert ("and money held by any person authorised under subsection (5) below to hold shares in common investment funds").

The noble and learned Lord said: This amendment makes it clear that the Lord Chancellor may continue to make common investment schemes establishing common investment funds for the investment of funds by a person authorised by the Lord Chancellor as well as the investment of funds in court. I do not think anything is likely to turn on this, so I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 45A: Page 25, line 44, after ("this") insert ("Part of this").

The noble and learned Lord said: This amendment narrows the extent of subsection (10) of Clause 42 of the Bill so that it extends only to Part VI, which deals with funds in court. It will ensure that the intention of the clause is clearly expressed. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 46: Page 26, line 14, leave out ("under subsection (11) above") and insert ("in respct of the running of the scheme").

The noble and learned Lord said: This amendment extends the scope of subsection (12) to cater for the possibility that the Lord Chancellor might in due course appoint a private manager of the common investment schemes. I do not think I need elaborate on that unless the Committee requires me to do so. I beg to move.

On Question, amendment agreed to.

Clause 42, as amended, agreed to.

Clause 43 [Provision for making good defaults]:

The Lord Chancellor moved Amendment No. 46A: Page 26, line 26, leave out ("scheme") and insert ("fund").

The noble and learned Lord said: This amendment substitutes the word "fund" for the word "scheme" so as to bring the terminology used in this clause into line with that used through the rest of Part VI. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 46B: Page 26, line 27, leave out ("funds in court") and insert ("money for which he is responsible under this Part of this Act").

The noble and learned Lord said: This amendment makes it clear that the Lord Chancellor may certify that the manager of a common investment scheme has been guilty of a default in relation to any funds for which the manager is responsible, and not just for funds in court. I beg to move.

On Question, amendment agreed to.

Clause 43, as amended, agreed to.

Clauses 44 to 49 agreed to.

Clause 50 [Orders for the maintenance of wards of court]:

The Lord Chancellor moved Amendment No. 47: Page 30, line 10, leave out ("(3)(a) and insert ("(2)(b)").

The noble and learned Lord said: In moving Amendment No. 47 perhaps I may speak also to Nos. 48, 80 and 81. These are linked amendments and are designed to show that a court ordering maintenance to be paid directly to a ward of court can make such an order against both the parents instead of only one of them, which might be appropriate in a case where the child is living with neither parent and they both have means. There are parallel amendments to Schedule 6, Amendments Nos. 80 and 81, to which I am also speaking, but these only make the same changes for Northern Ireland. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 48: Page 30, line 12, leave out from beginning to ("there") in line 14 and insert ("parents of a ward of court to make periodical payments towards the maintenance and education of the ward) after the words "the ward"").

The noble and learned Lord said: This is a consequential amendment. I beg to move.

On Question, amendment agreed to.

Clause 50, as amended, agreed to.

Clause 51 [Remission of arrears of maintenance]:

The Lord Chancellor moved Amendment No. 49: Page 30, line 16, leave out ("At the end of section 31(1)") and insert ("The following subsection shall be inserted after subsection (2) of section 31").

The noble and learned Lord said: This and the next amendment, No. 50, to which also I would speak in moving No. 49, confine the scope of Clause 51 so as to limit the new power to remit arrears to orders for periodical payments. As it stands, Clause 51 gives the divorce courts a new express power to remit arrears in all cases where the court has power under Section 31 of the Matrimonial Causes Act 1973 to vary orders for financial relief after divorce, nullity or judicial separation proceedings. Section 31 of the Act of 1973 applies only to certain classes of order; namely, orders for periodical payments, orders for payment of a lump sum in instalments and certain orders for settlement of property or a variation of settlement after a judicial separation, though the latter are not really relevant because in such cases, of course, no question of arrears arises. It is the application of the new power to lump sum instalment orders that these amendments would correct. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 50:

Page 30, line 21, leave out ("there shall be added the words "or") and insert— ("(2A) Where the court has made an order referred to in subsection (2)(a), (b) or (c) above, then, subject to the provisions of this section, the court shall have power").

On Question, amendment agreed to.

Clause 51, as amended, agreed to.

Clauses 52 to 54 agreed to.

The Lord Chancellor moved Amendment No. 51: After Clause 54, insert the following new clause:

("Attachment of debts

.—(1) The section set out in Part I of Schedule (Attachment of debts) to this Act shall be inserted after section 40 of the Supreme Court Act 1981.

(2) The section set out in Part II of that Schedule shall be inserted after section 143 of the County Courts Act 1959.").

The noble and learned Lord said: This amendment—I should like, if I may, to speak to Amendment No. 75 in the schedule—applies to the administrative expenses and the clerical expenses of a garnishee. The purpose of new Clause 54A and new Schedule 3A is to enable provision to be made for the expenses incurred by financial institutions in complying with garnishee orders. Part I of Schedule 3A makes such provision for the High Court and Part II makes similar provision for the county courts. Clause 54A(1) provides for the insertion of a new section in the Supreme Court Act 1981 and subsection (2) provides for an insertion in the County Courts Act 1959.

The new section to be inserted in the Supreme Court Act 1981 is set out in Part I of new Schedule 3A. The new Section 40A(1) of the Supreme Court Act 1981 enables a sum to be prescribed which may be deducted by a garnishee from money which would otherwise be attached by a garnishee order, as a contribution towards the expenses of complying with the order. The modern jurisdiction of the High Court to attach debts exists by virtue of rule (Order 49 of the RSC) rather than statute.

Accordingly, reference is made to Section 40(2) of the 1981 Act which does not itself create the jurisdiction to attach debts but provides a description of that jurisdiction. The institutions who are to have the benefit of the new provision are limited to those set out at (a) and (b) of the new subsection (1). The expression "deposit-taking institution" is defined in subsection (3), with a reference to Section 40(6) of the 1981 Act, which itself contains a reference to the Banking Act 1979, the effect of which is to include banks, building societies and certain other financial institutions within the definition. There is power at subsection (1)(b) to limit the benefit of an order under the provision to institutions with a minimum number of branches. The power to make an order under the new clause is exercisable by the Lord Chancellor.

On Question, amendment agreed to.

Clauses 55 to 60 agreed to.

7.22 p.m.

Lord Gifford moved Amendment No. 52: After Clause 60, insert the following new clause:

"Documents disclosed in litigation

.The obligation to protect and maintain the confidentiality of the contents of a document dislosed to a party to litigation or his solicitor shall terminate if and to the extent that the contents of the document are read aloud in open court in proceedings which are not subject to any limitation on reporting."

The noble Lord said: This amendment is similar to an amendment which I moved on two occasions during the passage of the Contempt of Court Bill. On the second Marshalled List, there has crept into the amendment an Americanism, the word "perty", which is a misprint. During the Contempt of Court Bill, the case of the Home Office v. Harman was passing through various stages of its way through the courts and on the Report stage of that Bill the amendment was not pressed to a Division because the House of Lords had yet to rule on the matter. The noble and learned Lord the Lord Chancellor promised that when the House of Lords had made a ruling he would look at all the implications of the issue which was raised.

The House of Lords delivered judgment on 11th February 1982 and, by a majority of three to two, gave judgment in favour of the Home Office. Now the noble and learned Lord can, I feel, delay no longer in addressing himself to the issue raised in that case. I am grateful that the broad terms of this Bill allow me to raise it so soon after the House of Lords delivered judgment.

May I briefly explain what the point is and in doing so may I emphasise that we should try to stick to the point of issue in this amendment rather than rehearse the rights and wrongs of the Harriet Harman case. The point is that when parties are in litigation they are under a duty to hand over, to disclose, to the other side all the documents which are relevant to the issues in the case. It is a duty which is of great value and helps the courts to deal justly and gain access to the truth. Because the documents are usually private documents, the litigant and his legal advisers are under a duty not to disclose them for purposes other than the purposes of litigation. That, again, is a valuable duty because it preserves the confidentiality of the documents for so long as they are not needed publicly in the litigation. If and when the case comes to court, the documents if they are relevant may be read out, questions may be asked about them, witnesses may be asked to explain why they wrote them and the whole case may turn on them and on what they mean. Above all, the public hear their contents and in a number of courts, including the High Court, a transcript is made of the publicly-heard proceeding.

One would think in those circumstances that the documents would no longer be confidential and that there would no longer be a duty not to disclose them. But it is not so. The law is that a litigant or his solicitor is not permitted to inform other people of the contents of the document. The law in so ruling, I suggest, is absurd and dangerously so.

The public may, on payment, obtain a transcript, if there is one, and find out what was in the document. The public, if they happened to have been in court, may take down in shorthand the document and its full contents; but those who are parties to the litigation are not allowed to tell anybody else, however much in the public interest it may be for them to write about or talk about the document, because that same duty of confidentiality is said still to remain against it. It is wrong headed in the extreme. What is even more absurd is that if the litigant were to give the document to a law reporter or to what was described by one noble and learned Lord, the noble and learned Lord, Lord Roskill, as a day-by-day reporter, it would not be a contempt. But if he gives it to the writer of a feature article, it is a contempt.

It is a distinction which those involved in the press and the media find quite unacceptable and quite unreal. I was glad to hear, as no doubt others have heard, that the Press Council have pronounced themselves very much in favour of the move by this amendment to change this wrong-headed law. As well as being absurd, it is serious. It strikes at the principles of free communication and creates barriers to the public being informed about what has gone on in a public court and, yet again, it puts this country in danger of being in breach of the European Convention of Human Rights which, in its article on the right to free expression, lays down clearly the right to impart and receive information.

The case of the Home Office v. Harman went through three courts and one could say that the law in those courts showed itself to be bearing the head, body and legs of an ass. But it was not wholly an ass because it had the tail of a robust British lion in the persons of the noble and learned Lords Lord Scarman and Lord Simon of Glaisdale. They in a joint judgment delivered themselves of what amounts to an essay on human rights, from Milton through the American Constitution down to the European Convention on Human Rights. I cannot do better in commending this amendment to the Committee than read one passage of their joint judgment. They said this: the common law by its recognition of the principle of open justice ensures that the public administration of justice will be subject to public scrutiny. Such scrutiny serves no purpose unless it is accompanied by the rights of free speech, i.e., the right publicly to report, to discuss, to comment, to criticise, to impart and criticise and to receive ideas and information on the matters subjected to scrutiny. Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case. It cannot be desirable that public discussion of such matters is to be discouraged or obstructed by refusing to allow a litigant and his advisers who learnt of them through the discovery of documents in their action, to use the documents in public discussion after they have become public knowledge. We believe the true path forward is to ensure that our law develops in a way which is consistent with the obligations accepted by the United Kingdom in the European Convention and with the development of the common law achieved in America".

I urge the Committee, by accepting the amendment moved today, to uphold the wisdom of those two noble and learned Lords. I beg to move.

Lord Rawlinson of Ewell

It is impossible to consider this new clause without reflecting again upon the case of the Home Office v. Harman—a case in which very murky circumstances arose which I think aroused grave suspicion of professional conduct in that particular case, smacking of a maneouvre being employed whereby if documents could by a strategem—that is, a longwinded opening—be read in open court, then those documents, which had been obtained by the process of discovery, could be shown to somebody totally outside that case but who was planning to write some politically sympathetic article attacking one of the parties to that litigation.

It was the circumstances of a disclosure then to a journalist, not on the instructions of the client whom this particular solicitor represented, who was going to write this particular article after a case in which counsel had seen fit to open the case for five days, reading—or purporting to read—800 pages, or the material part of those 800 pages, and appeared, as I said, to employ a tactic to promote some interest which was collateral to the actual issues of that case attacking in fact a party to the litigation in respect of matters not concerned with the action as such.

Beneath the formality of the judgments of the Court of Appeal and the speeches of the Judicial Committee of this House, and apart from the distinguished speeches —an extract of one of which has been quoted to this Committee—there comes a suspicion of some unattractive, strange practice. Whether it was contempt or not, there is little credit to the professional people engaged in it. Of course, it served to increase suspicion and doubt over the aims and practices of the National Council for Civil Liberties, with its very high-sounding title. If it should live up to that title, it should certainly never stoop to any questionable tactics.

The process of discovery is an onerous invasion of people's private rights. It means that documents can be disclosed to somebody else which otherwise hitherto are privately in the possession of a particular person. It should and ought to be jealously guarded and properly applied. Anything smacking of a trick reflects very ill of any practitioner who stooped to it. It is the duty to refrain from using the advantage of discovery, which is obtained purely because one is a party in a particular suit, for some ulterior purpose. As a result, practitioners would have much greater difficulty in getting discovery from, for instance, departments of the Crown. Often it is difficult to get documents and sometimes it is very important to get them. But if there is going to he the suspicion that the documents are going to be used not in the action but for some totally different political purposes, then departments would rightly fight every case of discovery.

Such conduct therefore inclines, and will incline, parties, whether they be departments, large corporations or ordinary parties, towards far greater reserve and caution. Public policy demands that an undertaking given by a solicitor to the court when obtaining the private documents of the adversary not to take advantage of the possession of those copies, to use for a collateral purpose, is essential. In my view, it should not end when the document is actually read in open court. Otherwise, one can use a ploy, the trick—if a professional advocate stoops to it—of being able then thereafter to use these documents. Discovery is a unique part of the common law system and it requires safeguards against abuse.

I also—unlike the noble Lord—can accept that there should be a distinction between the situation where counsel—as they often do—shows, for instance, to an accredited law reporter a document which has been used in the course of proceedings and/or to a reporter who has been in court and is proposing to afford for the public a proper contemporary record. I can sec the distinction between that and a deliberate showing to a commentator not interested in the particular case in which the document has been read and who is known to be going to use it not to report that case but to mount an attack on an opposing party.

Therefore, I agree with the judgment of the noble and learned Lord, Lord Diplock, in this particular case that it was nothing to do with the freedom of speech or the freedom of the press. I do not think that we should be misled by such assertions. I do not think that the press can have examined this carefully enough. The noble Lord referred to the Press Council. The Press Council could not have looked at it very carefully and very closely because they even muddled up which judge in the House of Lords gave judgment in a particular way. I do not think that they or their advisers have applied their minds very closely to it.

Lord Mishcon

Will the noble Lord give way?

Lord Rawlinson of Ewell

Well, if I may just finish—

Lord Avebury

Very discourteous!

Noble Lords

Order !

Lord Mishcon

I was only about to correct—

Lord Rawlinson of Ewell

If the noble Lord on the Liberal Benches will wait a moment, it is my habit to give way and I will give way when I have completed my sentence. I really do not need—if the noble Lord will accept it—instructions from him about courtesy. All I wished to say was that I do not think that the Press Council had examined this matter sufficiently carefully for them to consider it had this attack, as it were, upon freedom of the press, the freedom of speech, which they purport to do.

Lord Mishcon

The noble and learned Lord is, as always, very courteous and I am obliged to him. I am sorry if I interrupted him in the middle of a sentence, but I know that he is, as always, anxious to be fair. The Press Council issued a statement almost within a matter of hours—I certainly received it—apologising for their error in quoting the wrong Lord of Appeal in Ordinary and putting themselves right. Therefore, since that statement was issued to every noble Lord who had the original statement, the noble and learned Lord would not want to be unfair in making the point that the fact that they quoted the wrong judge showed that they had not considered the matter.

Lord Rawlinson of Ewell

I certainly do not want to be unfair; but let us just recollect that here was the Press Council, over that important signature, setting out their argument in favour of this particular amendment and referring us to the particular case and to the particular speeches or judgments. All I can say is that the person dictating the statement may have got it wrong and the mistake was not noticed; but I could not help feeling, a little wryly, that sometimes the press can get things wrong, and they got it very wrong in this particular case. However, they have corrected their mistake and they have set out their basic belief—that this is a grave infringement, as they believe, upon the liberty of reporting and of the press, and they have urged noble Lords to support this amendment.

However, I believe there is a superior interest, which is that of the maintenance of the discipline which there ought to be when you give to parties this particular power of discovery. Therefore, I believe that to use it in a way such as it was used in that case was a wrong thing to do and I would not like to see any extension or any ability for anybody to be able to do that again.

Lord Avebury

I very much deplore the language which the noble and learned Lord has seen fit to employ in his discussion on this matter and the personal attack he has made on Miss Harriet Harman, whose case has given rise to this amendment. I agree with the noble Lord who moved this amendment in saying that it would be far better if your Lordships were to address your minds to the merits of maintaining confidentiality of documents in cases similar to the one in question, rather than to personalise the issue, as the noble and learned Lord has done in his speech.

He made it absolutely clear that what was concerning him was not so much the question of the amendment itself but the use that might be made of documents that were disclosed in court, and whether that use was politically acceptable to him or not. The fact that an attack was launched by the author of the offending article, Mr. David Lee, on the practices of the Home Office, is enough to make the noble and learned Lord say that the decision of the Judicial Committee was the correct one and it was the political issue which was uppermost in his mind, so it appeared from his speech, in reaching that decision.

But the amendment deals with the treatment of documents read out in open court generally, where the court itself has not imposed any restriction on the reporting of those documents. I think it is worth making the point that the court does have the power to order that a particular document should not be referred to or that a document should he read silently or that when a document is being read the court should sit in camera. Therefore, when the court thinks that confidentiality is of overriding importance, outweighing the principle that justice should he open and public, it has the means to give effect to that view; but in all other cases the rule should be that a document, once read out, should be in the public domain.

I make this answer to the noble and learned Lord when he says that were the judgment to be reversed it would make it far harder to secure discovery from public departments, because if the courts have this power to order the documents to be read silently or in camera then where disclosure is committed but the document nevertheless should not he in the public domain, the court has the means of taking the necessary action. I think I am right in saying that the position was always thought to be that a document read out in open court was thereby placed in the public domain: I did not think there was ever any doubt on that matter until recently. Indeed, I believe that was the opinion of the Attorney-General, as was said in another place, but the Home Office, I understand, did not take the advice of the Attorney-General and sought to clarify the law—or, as some would think, to create a new law to suit their own purpose.

The Judicial Committee declared in their judgment that they were deciding a major new point of law and, by a majority, they came down on the side of the Home Office and against what everybody else had thought the law to be until that particular time.

Parliament did not make that law; the judges made it. Parliament has never had an opportunity of pronouncing on that matter because, as the noble Lord, Lord Gifford, has already mentioned, while the Contempt of Court Bill was under consideration the Harman case was still subject to appeal, and so it was not until February 1982, when the Judicial Committee found against Miss Harman, that the opportunity came for your Lordships to consider this matter. This is the first occasion on which it has been possible to arrive at a conclusion on it without running foul of the sub judice rule.

I think it is essential that Parliament should now take a view on the issue because I agree with the noble Lord who moved the amendment that it raises major questions relating to freedom of expression and particularly to the freedom of the press to report what is said in the courts of law. I received a letter only yesterday from the Press Council, saying that at their meeting last week the council had unanimously supported the amendment now before your Lordships. They had arrived at that decision with the benefit of mature consideration, and I think the noble and learned Lord was being very unfair to them in the point he made just now about the confusion in regard to the name of the judge. That did not alter the substance of the matter. What the Press Council thought about the ruling when they first issued their press statement is what they still think, and it made no difference to the view that they took that the name of the judge in their original press statement had to be amended—and was indeed amended, as the noble Lord, Lord Mishcon, has said. I thought that was an argument which, if I may say so, was totally unworthy of the noble and learned Lord—that because a mistake had been made in the name of the judge the worth of the statement originally made by the Press Council was thereby destroyed.

But the Press Council is not the only body concerned with the freedom of the press which has expressed an opinion on this matter. The Guild of Newspaper Editors and the National Union of Journalists, of which I have the honour to be a member, have said that the ruling will make it far more difficult to report court proceedings accurately; so we are not just dealing with some mysterious legal technicality but with something which will adversely affect the freedom of newspapers to report what is said in court.

There is one other point which I think should be made, and that is that the Law Commission in its report on confidentiality, in considering the case of the Home Office against Miss Harman emphasised that that case related to liability not for a breach of confidence but for contempt of court, and that was not the concern of the report. Nevertheless, having gone on to consider the implications of the Harman case, they concluded: We do not think that civil liability for breach of confidence should persist after the information to which the relevant obligation of confidence related had been published in open court". A little later on they say: In the interests of the free circulation of information we think everyone ought to be able to rely, so far as any civil liability for breach of confidence is concerned, on the fact that the information in question has been published in open court". Is it not an additional absurdity, to add to what has already been mentioned by the noble Lord, that the law of confidentiality, as it should be according to the Law Commission, will not be compatible with the law of contempt? It seems to me that the two should march hand in hand, but they will not if this judgment is allowed to stand.

The noble Lord has already mentioned the problem of the European Commission for Human Rights. One would have thought that we were in enough trouble with that body already without allowing further ammunition to be given to those who would seek to raise cases against the United Kingdom in that forum. There is no doubt at all, when one looks at it, that the European Commission would come down against us if a case were brought in respect of this matter.

In conclusion, I also should like to refer to what was said by the noble and learned Lord, Lord Scarman, in his remarkable judgment which has already been quoted by the noble Lord who moved the amendment. He pointed out that no one disputed that once documents had been read aloud in open court, and were not subjected to any specific lawful direction prohibiting publication, they entered the public domain". They were no longer confidential. Privacy had been stripped from them.

The noble Lord who moved the amendment has pointed out that, in the case of any other person except a solicitor, no breach of contempt could be alleged. If I were in the court and either was able to take a shorthand note of the proceedings or happened to have a very good memory, I could go out and repeat to my friends everything that had been said there. If, as the noble Lord has pointed out, a solicitor were to divulge what had been said to anybody except a feature writer, no contempt would be committed.

So I really think that, as the noble and learned Lord, Lord Scarman, and his colleague in the dissenting judgment have shown, we should be getting into a real muddle if we allowed this to stand. I very much hope that your Lordships will take this opportunity of putting right something which will severely inhibit the newspapers, and which will bring us into possible conflict with our obligations under the European Convention if it is allowed to stand.

7.53 p.m.

Lord McGregor of Durris

This amendment provides an apt illustration of the platitude that rights can be enjoyed and protected only if they are restricted. The difficulties of making a wise accommodation between freedoms and responsibilities are sharply clarified in the relations between the press and the institutions of justice. A free press and a fair and honourable administration of justice are among the bases of democracy. To the extent that this amendment hears upon their relationship, it has an importance which goes far beyond the case from which it stems, the details of which I intend to ignore.

The voice of the layman ought to be heard alongside that of the lawyer in this discussion, but even the lawyers and the judges do not agree what the significance of the case of the Home Office v. Harman is. I am referring not to the domain of the professional lawyer, which I am not competent to discuss, but to the broad concerns of all citizens. If the layman turns to the judgments, he finds that the noble and learned Lord, Lord Diplock, said—and in quoting him I am following what seem to have been laid down as the proprieties of the discussion of this amendment— In a case which has attracted a good deal of publicity, it may assist in clearing up misconceptions if I start by saying what the case is not about"— the "not" is italicised— It is not about freedom of speech, freedom of the Press, openness of justice or documents coming into the public domain". On the other hand, the noble and learned Lords, Lord Scarman and Lord Simon of Glaisdale, declared: Since the question before your Lordships falls to be answered on the basis of principle, we do not think that the nature and the duration of the obligation can be determined by reference merely to the requirements of the law relating to discovery of documents. Regard must also be had to the requirements of the general law protecting freedom of communication". It does not matter for my purpose which of these views is correct. What does matter for laymen is that some lawyers and many laymen believe that we are discussing an issue which affects the freedom of communication. As the clause stands, every newspaperman and editor to whom I have spoken feels that it restricts unreasonably their freedom of reporting and imposes the distinction of the noble and learned Lord, Lord Diplock, between law reporters and other sorts of reporters, which would be impossible to maintain in the world of newspapers.

This is the view of the Press Council, and I did not find acceptable the suggestion of the noble and learned Lord, Lord Rawlinson, as to the inadequacy of the consideration which that body had given to this matter, because I recall that the chairman of the Press Council is a distinguished practitioner, and I am certain that proper consideration was given both to the professional implications of the amendment and to its effect upon the conduct of newspapers.

Editors find the possibility that documents may not cease to be confidential even if read in open court, and that quoting from them may prejudice the administration of justice, so puzzling as to be almost incomprehensible. On this matter, I think that it is clear that respect for the present clause has been withdrawn, because it strikes an unwise and impractical balance between the values of freedom of reporting and of the proper administration of justice. This is bad for the law and it is bad for the press.

Historically, the law and the press have, through open reporting since the end of the 18th century, been one of the important guarantees of the independence of the judiciary and of securing fair and effective administration of justice. The volume of opinion that regards this clause as bad in its effects upon this vital area of public policy is so great that I would ask the noble and learned Lord to accept the amendment proposed by the noble Lord, Lord Gifford.

8 p.m.

Lord Wedderburn of Charlton

I apprehend that the noble and learned Lords, the Lord Chancellor and the Lord Advocate, will, in their good nature, say something to accept the principle of this amendment, whether or not the precise wording.

May I briefly suggest to the noble and learned Lords why I feel that, and I hope that I am not mistaken. It is because the principle is now established, as principles are in the Judicial Committee, at three votes to two. I wonder what the position would have been if the majority had gone the other way. I wonder whether the noble and learned Lord would be promoting a Bill to establish by statute the position that we have now. And if he were not, then I wonder what ground there would be for opposing the principle, at least, of my noble friend's amendment. It would be a most extraordinary Bill. It would be a Bill which said that once documents were read out in court where there were no restrictions on reporting and all the other provisos which my noble friend has made, they entered the public domain, except for the litigant and the solicitor.

To take the absurdity from the judgments, which is discussed by the noble and learned Lord—I refer to the particular judgment in the Harman case, though not to refer to it in terms which T would not use outside the privilege of this House—the position now is, and would be under the Bill promoted by the noble and learned Lord, that the solicitor, after the document had been read out, would not offend against the law if he handed to the journalist the transcript of the proceedings but that he would offend against the law and would be guilty of contempt under the legislation if he gave the documents themselves to the journalist. Then the Bill would go on to define the journalist as against the law reporter. I do not believe that the noble and learned Lord would advance such a Bill in your Lordships' House.

I thought, again: if the next Government, when the noble and learned Lord's distinction is placed on the Opposition Bench, advanced a Bill to put these principles into practice, he would come down to this House, raise an enormous majority and correctly defeat any Government who tried to enact such principles. I believe he would feel that this is right.

Therefore, taking into account all the fundamental principles which my noble friend Lord McGregor has suggested are at stake, taking also into account the European Commission on Human Rights to which the matter may well be taken (and before which I agree with my noble friend the Government would lose if they defended the present law), and taking into account, further, the Law Commission and the logic of both the noble and learned Lord, Lord Scarman, and the noble and learned Lord, Lord Simon of Glaisdale, I entreat the noble and learned Lord at least to accept the principle of this amendment, which is so clearly right.

8.3 p.m.

Lord Hutchinson of Lullington

I support this amendment as a practising lawyer. I would urge that the amendment raises a fundamenal question of principle and of common-sense. I am very sad that the noble and learned Lord, Lord Rawlinson, should have dealt with this amendment on a personal basis and, if I may say so, on a political basis. On that matter, Miss Harriet Harman, to my own knowledge, is a most honourable and upright solicitor who would not have dreamt of doing anything, as an officer of the court, if she had not considered that what she was doing was perfectly within the law. It is only right to say in that context that every one of the learned judges who dealt with this matter, below and above, went out of their way to say that the court did not in any way impugn the bona fides of Miss Harriet Harman. I think that that should be said.

This matter raises once again in your Lordships' House the question of the law of contempt. This is a sensitive area which may guarantee that the stream of justice runs clear and unsullied. On the other hand, it may fundamentally interfere with freedom of expression and freedom of communication. The majority speeches in the Judicial Committee, I would suggest, obviously do so interfere. If one takes the case of the advocate in court, the situation now is Gilbertian in its idiocy. In fact, I should declare an interest in this matter, in that I swore an affidavit in that case in order to assist the court as to what the procedure is in the criminal courts. Throughout my experience in the criminal courts, if a reporter came up to me at the end of the day in court and said, "I did not hear the contents of exhibit 47", or,"You referred to exhibit 47 but did not read it out; could I have a copy of it?"I considered it to be my duty, even if my own client might not wish for the publicity which inevitably follows from court reporting, to show him anything that had come into the public domain during the course of the case. And, as I say, I swore an affidavit to that effect.

What is the situation now? A gentleman comes up and says, "May I see the document you referred to in your opening?" "Who are you, sir?" "I am a law reporter". "Oh, certainly; here is a copy of it". Another gentleman comes up. "Who are you, sir?" "I am a court reporter". "Oh; are you intending to give a fair and accurate report of what I said?" "Oh, yes, of course I am". "You are quite sure that you are?" "Yes". "Very well, here is a copy". A third gentleman comes up and says, "I am the home affairs representative of The Times newspaper. This case has all sorts of interesting implications and I want to write an article about it next week for The Times. Could I have a copy of the document referred to?" "But that is comment, Mr. Jones. That will be comment, won't it?" "Yes, it will". "Oh, no, I can't possibly show it to you". He will then say, "Can I ask my colleagues, to whom you have just given copies, for a copy?" "Well, that is a matter for you, Mr. Jones. I don't know what will happen, of course. The judge may have you, or him, up for contempt". The whole thing is quite chaotic, but that is the situation, the realistic situation, now in court and I would suggest that it is quite ridiculous.

The rule enshrined in this amendment is perfectly simple and follows the speeches of the noble and learned Lord, Lord Scarman, the noble and learned Lord, Lord Simon of Glaisdale, and the Law Commission's draft Bill which has already been referred to. It says quite simply that once documents enter the public domain the contents become public knowledge and that then the obligation of confidentiality ceases. This is the point which was ignored by the noble and learned Lord, Lord Rawlinson. It does not matter, and it is totally irrelevant, what use is made of the document once it comes into the public domain. Its use may be good, bad or indifferent. The point that has to be made is that confidentiality perfectly properly applies to the private litigant and to the solicitor and counsel concerned until that moment is reached. When that moment is reached there is nothing to be confidential about. There cannot be any obligation of confidentiality. And, once it enters the public domain, then of course the other great principle applies: that it then no longer continues to be the private right of the litigant but becomes the public's right to freedom of comment, information and ideas.

A little time ago, during the passage of the contempt Bill your Lordships will remember that, despite the very strong and exhilarating opposition of the noble and learned Lord who sits on the Woolsack, your Lordships passed an amendment to the contempt Bill which guaranteed the freedom of the public when serving as members of a jury not to be molested and not to be put under pressure as to what went on in the jury room. That amendment enshrined the freedom of every person in this country who does that job to be free of that kind of pressure and molestation. Here, I would venture to say, is the other side of the coin. Here is the guarantee of public freedom of comment and expression which should be guaranteed to the public, as opposed to the sectional interest and protection of the Minister, or of the civil servant, or of whoever it may be who would be embarrassed to have a matter commented upon.

Over and over again when I have appeared for a shoplifter or a gentleman who has unfortunately found himself in a public lavatory charged with a wretched offence, the accused has said to me,"I shall be fined £5 if I am found guilty. Some 99 out of 100 of these cases are never published in the newspapers. How am I going to keep my name out of the press? I happen to be captain of the cricket XI of the local village. I shall get publicity and I shall be completely ruined, whether I am found guilty or not guilty." One has to reply, "No, alas for you, but not for everybody else, matters which are pursued in the courts of law in this country are public and the public have a right to know what goes on. They are entitled to comment on and write articles about what goes on in the courts." So why should the Home Office or a mere Minister be placed in a better position than the ordinary member of the public who unfortunately finds himself in a situation which, for him, is far more dreadful than the one facing the persons involved in the Harriet Harman case? I strongly urge your Lordships to support this amendment.

Lord Gardiner

As it was through no fault of my own that I was unable to be present at the Second Reading of the Bill, I hope that your Lordships' House may forgive me if I congratulate most warmly the noble and learned Lord the Lord Chancellor on this splendid Administration of Justice Bill. It is the usual way of trying to keep the law up to date. It is always very varied in its contents. I believe that I had such a Bill in most years, but I never attempted one so ambitious as this. Its size is enormous and must have involved an enormous amount of work both for the noble and learned Lord and for many members of his staff. I warmly congratulate him on it.

As the noble and learned Lord the Chancellor has said, one of the difficulties there always is about Administration of Justice Bills is that, on the one hand, because such a Bill's contents are so varied, the long Title has to be very wide, so it is almost impossible to say that any amendment proposed dealing in any way with the administration of justice is out of order. On the other hand, the Lord Chancellor has always had to promise his colleagues that the Bill is not going to take up a great deal of time. Obviously, this creates a great number of difficulties; not, I hope, in the case of this Bill because the noble and learned Lord has undertaken (as the Attorney General repeated on 25th February in the other place) that after the judgments had been given in the Harman case he would review this point.

I, too, for reasons which have been given already, find the present position really absurd. As the noble and learned Lords, Lord Scarman and Lord Simon of Glaisdale, said in their judgment: A distinction between use of a transcript containing the documents and the documents themselves would be absurd. Take the present case. Miss Harman could be sitting at her desk with the copy bundle of disclosed documents by her left hand and a transcript of the trial proceedings by her right hand". If I may say so in parenthesis, although the noble and learned Lord, Lord Rawlinson, talked about tricks and questionable practices, it should, I think, be emphasised that all parties have agreed throughout that Miss Harman acted with complete integrity. The judgment goes on: She would not offend if she handed the journalist the transcript containing the record of the documents as and when read out in court, but would be guilty of contempt of court if she gave him the self-same documents extracted from the bundle of documents made available on discovery. A guilty left-hand and an innocent right hand? Rights and duties in the field of fundamental freedoms cannot depend upon such distinctions". I wish to take a rather different point in the main, and that is the difficulties I believe we are getting into about the European Convention. I know that the noble and learned Lord the Lord Chancellor has always said that if we enter into an international treaty we are morally bound to comply with its terms, and the European Convention is such a treaty. Indeed, when opening the Second Reading of the Contempt of Court Bill on 9th December 1980, the noble and learned Lord the Lord Chancellor said (Official Report; col. 660.): There are three main purposes in the first six clauses: first, to implement the main recommendations of the Phillimore Report with what I hope to persuade the House are minor deviations; second, to harmonise the law of England and Wales with the majority judgment of the Strasbourg court in the Sunday Times case". The noble and learned Lord's closing words before the Bill went to another place on 17th February 1981 (Official Report, col. 592.) were: I regarded it as a matter of enormous importance that we should legislate Phillimore now at last after 10 years, and that we should conform with the European Convention as it was decided by a majority of 11 judges to 9 to be the law of the European Convention". As both the noble and learned Lord, Lord Scarman, and the noble and learned Lord, Lord Simon of Glaisdale, pointed out, it is at least doubtful whether, in our present law, we do not contravene the provisions of that convention. They said: We confess that we find none of the grounds adduced in aid of the alleged exception sufficient—alone or cumulatively—to justify what appears to us to be a discriminatory and unnecessary exclusion of the litigant and his solicitor from the exercise of a right which is today a fundamental freedom recognised by the common law and required by the European Convention to be secured to everyone within the United Kingdom". Later, they had said: If English law should recognise this exclusion, it might well be inconsistent with the requirements of the European Convention". I hope that we are not going to get into the practice of having to pass legislation to overrule the House of Lords in its judicial capacity in order to comply with the terms of the European Convention. I should have thought that if you have the state of affairs which you certainly have here, where, putting it at its lowest, it is very doubtful whether it does not contravene the European Convention, then when we have to consider this question today, that at least is a factor we ought to take into account.

8.18 p.m.

Lord Hunt

Having read the judgment of your Lordships' Appeal Committee on the case in question and having listened very carefully to the arguments, and particularly the arguments advanced by noble and learned Lords this evening, I should like to tell your Lordships that I propose to vote for this amendment and to explain very briefly why. One abiding conviction which has remained with me during the five years since the Royal Commission on the Press reported to the Government in 1977 has been the key position, in all our freedoms, of the freedom of the press, despite its manifold imperfections. Whatever the substance of the conclusion reached by the noble and learned Lord, Lord Diplock, in the majority judgment of the legal committee as to the relevance or otherwise of the freedom of the press to that particular case (and I am persuaded that it was entirely relevant), this amendment —and surely this is the point that we are discussing this evening—is about the freedom of the press.

Nothing can alter my conviction that, when a document has been read out in open court without any restrictions on reporting, three things should follow: the public has a right to know the contents of that document, the press has a duty to make its contents known to the public, and those who hold the documents should be entitled to make them availabe to the members of the press to make quite certain of the accuracy of their reporting.

As to the arguments in support of the law, as I understand the judgment, as it stands, and those arguments which seek to draw distinction between the permissibility of quoting from a transcript and the impermissibility of quoting from an original document, I would just say, without any personal intention to cast aspersions, that it is just arguments such as those which make the law an ass in the public eye. I would go further and say that it is arguments such as those which risk bringing the judiciary themselves into contempt.

I regard this amendment as important, and I think it is an amendment which is necessary to pre-empt, to obviate the danger of further damage being done to the high repute of the law; and Heaven knows that is very important today in respect of those people who are only too anxious to seize on opportunities such as this to bring the law into contempt and the judiciary into disrespect!

Lord Jacobson

May I declare a three-fold interest; I am a life member of the National Union of Journalists, a former member of the Press Council, and an ex-editor. It is in the last capacity that I want very briefly to stress what some of my noble friends on this side have said, that the attempt to draw distinction between court reporters and news reporters and feature writers or leader writers, is so totally artificial and irrational that it simply will not work. I am quite sure that the press itself will find ways of making it unworkable and what will happen, unless this amendment is accepted, as the noble Lord, Lord Hunt, has just said, is that it will make the law and those who have to administer it look very foolish indeed.

Lord George-Brown

May I just ask this? Why should it be that if you draw a distinction between those who report what is happening, what has happened, and those whom my noble friend calls feature writers, people who are paid to make fun of the thing, that makes the law an ass? It seems to me that what you do is to draw attention to the instinctive desire of some who want to sell newspapers to make the law look an ass. We are, many of us, accustomed nowadays to some journalists who gain spurious repute and Oscars for writing what are supposed to be rather amusing columns in the Daily Telegraph and in the Guardian on the proceedings of this House. There is a very great difference between what they write and what the reporters of this House write.

With the greatest respect to my noble friend Lord Jacobson, he is asking us to act as though those differences do not exist. Making fun of the law, making fun of this House, is one thing; straight reporting is another. Unless I misunderstand the point of this amendment, its effect would be to distinguish the Gilbert and Sullivan writers and diminish those who do straight reporting.

I frankly confess my view. Straight reporting is one thing, straight reporting I will defend, but the right of people just to make fools out of everything is one of those things which help to diminish the whole morality of today. With great respect to Lord Jacobson—my noble friend, as in days before either of us was ennobled—I do not think that really can stand any defence at all. Reporting is one thing; diminishing, destroying is quite another thing altogether. This is the news that was not. It is quite different from presenting this is the news. I hope this amendment will be rejected.

Lord Jacobson

My noble friend Lord George-Brown has suffered at the hands of the press in the past, and I think this has given him a rather jaundiced view of the whole of the newspaper profession. I was not trying to suggest that giving feature writers access to documents that had already been declared in court, and to which law reporters and news reporters have access, should be made fun of. The point is this. Where a matter of serious public interest, as in the Harman case, arises, access to such documents will help to preserve the accuracy of writing which seeks to comment on and to analyse that particular case. It has nothing to do with light-hearted columns about Parliament or anything else.

Baroness Jeger

I put my name to this amendment because I think it is fundamental to the freedom of the press in this country. I should like to start by saying that there would have been more Members of your Lordships' House on these Benches tonight had it not been that in another part of the Palace of Westminster at this very time there is a memorial meeting going on to our late friend Lord Ritchie-Calder. I know he would have supported this amendment tonight, because I discussed it with him not many sad weeks ago. I felt that I should be here rather than attending the meeting, at which I would have very much liked to be present.

I must declare an interest as a life member of the National Union of Journalists; and I am very grateful for what the noble Lord, Lord Jacobson, has said, because it seems to me that, especially from the speech of the noble and learned Lord, Lord Rawlinson, some of your Lordships do not know how newspapers work. I speak with trepidation with my old editor, Lord Ardwick, at my side but I can recall, in the great and glorious days when the Manchester Guardian was the Manchester Guardian and we had only a small office in London, that he would send me to do a court report in the morning, to go and see what was happening to a cat up a tree in Golders Green in the afternoon, and to review a play in the evening.

I am sure that the idea that it is possible in law to discriminate between the law correspondent, the court correspondent and the general reporter, or the feature writer, is totally unreal. I must explain and emphasise that if it is unreal on national papers, it is certainly quite unreal on local papers. Local papers, working with a small staff, will send a reporter to do all sorts of jobs, and they will say to him in the evening,"Goodness! There is nothing for that page 3 feature tomorrow. Will you knock out something?"The idea that it should be entrenched in the law that one type of reporter is different from another, is quite impractical and quite unacceptable. I speak as a layman, but I think that if the law does not make sense to laymen then the law cannot command public respect.

Lord George-Brown

With great respect, the noble Baroness does not speak as a layman: the noble Baroness speaks with a privileged interest. What I do not understand is why the self-declared 100 per cent. members of the National Union of Journalists—I speak as a 100 per cent. fully paid up member of the Institute of Journalists—come along with a party position and then try and address us as though they are laymen. Of course all of us who earn the whole or part of our living by journalism know the difference between straight reporting and commentating. May I ask the noble Baroness why it should be so difficult for anybody engaged in journalism to distinguish between straight reporting and commenting?

The Lord Chancellor

May I say something? I have such fun being on this Front Bench and not over there. I did think that the noble Baroness, Lady Jeger, was making a speech and when the noble Lord intervened I was wondering who was making a speech about what, to whom. I wonder if perhaps the Committee would let the noble Baroness get on with it?

Baroness Jeger

As we are in Committee I was speaking to an amendment to which I have put my name. I think that I must be in order. It may be that other Members of your Lordships' Committee are not in order, but I cannot see how I am being disorderly in what I am saying. I shall not take up the Committee's time by going into detail in answering what the noble Lord, Lord George-Brown, has said because of course we all know that there is this type of all-round reporting—the odd job that anyone who works on a newspaper has to do. It is quite impossible in law to make these differences apply.

I cannot help but wonder whether, if the article about the Home Office in this case had been favourable to the Home Office, the case would have ever been brought. This is what gives all of us who care about the freedom of the press a reason to feel very concerned about the situation in that case. We see this amendment tonight as a way of putting things right. We are really talking about shorthand. We are talking about how good is a reporter's shorthand. We are saying to a reporter"If you take this down verbatim with your splendid shorthand in your shorthand notebook"—and mine is very rusty—"and go back to your newspaper and type it out", then"that is all right"; but if a journalist goes up to one of the people who has the documents and says,"Look, my shorthand is a bit rusty, can I check what I have got against the documents?", then that is illegal. My friends, that does not make sense to ordinary people. I am only concerned about what makes sense to ordinary people.

Therefore, I very much hope that this amendment will be accepted tonight because I know that there is a great deal of anxiety in all quarters of the Committee about the present ruling. I would only like to add that I think that it was a question of public importance for the case to go to appeal. But I think that it is very unfair that the very heavy costs are having to be borne by the National Council for Civil Liberties, because if it was a matter of public interest for this problem to be sorted out, then I do not see why the Home Office should not have made some contribution to the expenses in this case. For those reasons I shall not delay your Lordships any further. I very much hope that the amendment will be accepted.

The Lord Chancellor

I do not know whether it is time for me to say something or not, but I hope that I may be forgiven if I do so. I venture to think, with great respect, that this is a little more difficult than some people have thought. Everybody who has spoken has said, "I am not a lawyer, I am only a journalist" or "I am not a journalist, I am only a lawyer". They all have various coloured axes to grind. I am always frightened of disagreeing with the noble Lord, Lord Gifford. I always feel that if I disagree with anything that he says, somebody like Jupiter above the ceiling will drop a thunderbolt on my head, because the noble Lord is always so passionately attached to his causes.

I have always wanted all my life to sit on a jury. But, of course, when the noble Lord, Lord Hutchinson of Lullington, addresses the House he always addresses us as if we were all jurors and so I now know exactly what it is like to be at the receiving end of the noble Lord, Lord Hutchinson of Lullington, when he is at the Old Bailey. But the fact of the matter is that he was wrong about two or three things which he said and I think that I must try to put him right.

First of all, the noble Lord is one of the most distinguished, if he will allow me to say so—and I declare an interest of which he knows—criminal practitioners at practice in the English Bar. But this case about Harman, the Home Office and Williams was not at all about criminal law in the first place. There is no such thing as discovery in the criminal law. It was basically a case about the use which solicitors make of documents which are extracted from the other side on discovery. So I think that we can forget about that.

Secondly, he appeared to be under some kind of illusion that the Home Office was claiming a special kind of privilege. Of course the Home Office was claiming at an earlier stage when it appeared before Mr. Justice McNeill a special kind of Crown privilege, but in fact the amendment—which is, after all, what we are supposed to be talking about—is not concerned with Crown privilege at all. It could he as applicable to a case between John Smith and Rupert Brown as between the Home Office and Miss Harman on the information of the Attorney-General.

I think that all the journalists and lawyers who have been talking should realise that what is really at stake is ordinary litigation between ordinary people in the way that it is carried on in the civil and not the criminal courts. A great deal of the argumentation which has been presented about this is based on a totally fallacious idea about what it is. With great respect, to the noble Lord on the Cross-Benches, I am not going to enter into the argument as to whether there is a difference between a feature writer and a court reporter. I think that there is a distinction, but for the purposes of what I want to say we can forget about that.

Supposing in the course of litigation—and I put this to the lawyers and not to the journalists for a reason that I shall give—something extremely unpleasant between two absolutely ordinary private citizens is read out in court about an innocent third party? Curiously enough this is one of my preoccupations about the matter. Supposing the press does not take it up at all so that no journalist is even involved in it? But supposing somebody for the purpose of harassing that third party, happens to have got a confidential document in the course of discovery? I am not making any allegations against poor Miss Harman and I hope that the noble Lord, Lord Gifford, will not throw his thunderbolts at me for that or, indeed, my noble and learned friend. In fact, almost everybody who has taken part in this case has appeared for me at one time or another. But I hope that your Lordships will realise what this amendment would do. It would mean that if it were read out in open court, the confidential document could be used six months later for any purpose, however malicious and however ruinous to the innocent third party.

Lord Avebury

Will the noble and learned Lord give way?

The Lord Chancellor

Yes, I shall in a moment. The point I am trying to make is that you do not realise that this is a little more complex than you think, and that it has nothing necessarily to do with the freedom of the press. What it has to do with is the use you make of documents extracted on discovery.

Lord Avebury

Does the noble and learned Lord agree that this is how the law was sought to be until the decision to which we are now addressing our minds and, therefore, because the specific evil which he mentions to your Lordships has never, in fact, arisen, the danger is non-existent?

The Lord Chancellor

I do not think that the danger is non-existent. I have perhaps a wider experience of litigation than the noble Lord, and I have known it exist. Since I have been Lord Chancellor I have had to address a seminar of judges on this kind of problem. Therefore, I do not agree about that at all.

Perhaps I may continue to make my own speech in my own way. You must realise that the privileges of the press are very precious to them, and quite rightly, but they are only the privileges, such as they are, of the ordinary individual. Misconduct by the press may be more ruinous than misconduct by a humble individual like myself, but, in fact, we are talking about the use made of documents. The amendment, of course, deals with information, but the case of Harman was actually about the use made of documents extrinsic to litigation; about possibly innocent third parties who may not be able to defend themselves at all.

I hope that that indicates that the problem is perhaps a little more complex than these enthusiasts have been trying to make it appear. It is not only to do with the freedom of the press. I do not want to be accused by the noble Lord, Lord Gifford, of having done the very thing of which I have accused him, but I think that he was being a little cavalier when he referred to a decision made by Mr. Justice Park, three Lord Justices of Appeal, including the Master of the Rolls, and three Law Lords, as having the head and ears of an ass. I shall not say that it is disrespectful; he is entitled to be as disrespectful as he likes in this place, fortunately for both of us. But I think that he was being a little arrogant, if he will forgive me for saying so. These people are not asses. They are, in fact, people who have given the whole of their lives to the administration of justice. One is entitled to say that they are wrong. I must say, I doubt whether the noble and learned Lord, Lord Scarman, and my noble and learned friend Lord Simon of Glaisdale would have been particularly pleased to be called the lion's tail. I am a great admirer of lions, but I think that the tail is the last part of the lion that I would glorify. Therefore, I do not think that they are complimented either.

I should like to thank in particular the noble and learned Lord, Lord Gardiner, for the kind things that he said about this very long, complicated and technical Bill. I am trying my best to get through it, an aspect which people have rather lost sight of in some of the va et vient of this particular debate, which has now been going on for 71 minutes. However, I think that the general even-handed way in which I have proceeded has been to say that no hobby-horses ought to be ridden in this Bill, excellent as some of them are and less excellent as some of the others are.

I should like to return the discussion to what the noble Lord, Lord Gifford, said almost at the opening. He reminded me of a promise that I made on the Contempt of Court Bill. To quote my own words: All I can say is that when this question of appeal is out of the way one way or another, which will be long or short according to what happens, I will put it to my Department and discuss it with colleagues, but without any undertaking as to what may emerge". —[Official Report, 10/2/81; col. 181.] That undertaking stands. I gave that undertaking to the noble Lord and I am a man who tries to be a man of his word. I intend to abide by that promise both in the spirit and in the letter. I do not want to take very violent sides about this. I want to disabuse some people of some fallacies, but I mean what I say. I repeat that promise. Perhaps I can say, without a breach of confidence, that only today I spoke to the noble and learned Lord, Lord Scarman, about it. He is the chairman of the Law Reform Committee. He would not, of course, like to preside at this particular inquiry, for reasons which may occur to those who have read the judgments in the case, but he did put certain ideas before me and I should like to have this matter properly investigated. That promise stands irrespective of the merits or otherwise of the amendment.

However, I venture to think that this is a little more difficult than is thought. Persons not party to the litigation may be seriously prejudiced by the use of information disclosed about them on discovery. That was not a point raised in the Harman case but it was a point raised in the case of the Church of Scientology. It is all very well for the noble Lord, Lord Avebury, to tell me that I am tilting at windmills with imaginary fantasies, but this is one of the things that can happen. It was precisely the point that was raised in the Scientology case.

There is, of course, the importance which the noble Lord, Lord Gifford, rightly attached to the rather delicate business of extracting confidential documents out of one's own client on discovery, to which the legal profession attaches the very greatest importance. I know that I shall be borne out in that by at any rate every civil practitioner at the moment in the Committee. It is very difficult to persuade a commercial firm for which one is appearing that one is not really betraying its interests when one tells it that the damaging documents which one found in its secrets files have ultimately to appear in its affidavit. I think that the Law Society and the legal profession—and I thought that my noble and learned friend Lord Rawlinson was probably speaking for a majority of them—doubted whether the amendment as at present conceived could be reconciled with the importance of maintaining the rigour—and it must be rigorous—of discovery in respect of confidential documents.

The question of confidentiality is one of very considerable public interest and I am bound to say that I agreed with a document from the Law Society which commented on this particular amendment but in the context, not of the Law Committee's Report, but of the Law Commission's Report No. 110 on Breach of Confidence, which was published in October 1981, and on which the Government have not yet taken a line and upon which public comment is still open. The document itself is very much too long for me to quote, but I should like to quote a slightly long passage because, if I may be forgiven for saying so, I am talking to this audience of enthusiastic lawyers and journalists and I am trying to represent, for once, the common man.

I thought that the Law Society made some rather shrewd remarks about the so-called Harman amendment. It said: …it is not clear that it hits the target of altering the law of contempt of court as declared by the majority of the House of Lords in Home Office v. Harman. It seems to us that it needs to be considered in the context of the present study of the Law Commission's Report and draft Bill, whether or not this further step ought to be taken". It went on: The question is put in the minority opinion of Lord Scarman and Lord Simon whether it can be good law that the litigant and his solicitor are alone excluded from the right to make that use of the documents which everyone else might now make, namely, to treat them as matters of public knowledge". It seems to us that, whether it is regarded as a matter of breach of confidence or of contempt of court, the answer to this question must probably be "No," but before the law is altered to this effect the consequences for the conduct of litigation need to be carefully considered. May it not inhibit disclosure by parties in the first place? Might a court not be influenced against ordering disclosure of sensitive documents by the consideration that they could subsequently be used for other purposes in this way? We know that Mr. Justice McNeill in the Harman case did say that he was influenced because he thought that he could trust the parties who had the documents not to use them in this way. Would it be necessary, for instance, for solicitors preparing lists of documents for affidavits or giving discovery to consider on each occasion whether a special order should be sought effectively restoring the present implied undertaking not to use documents otherwise than for the purpose of the litigation? Would an incentive be created for counsel or litigants in person to read out documents in open court for the sole purpose of removing them from the scope of the implied undertaking? There is also the point made by Lord Diplock that, although the contents of a document once read out in open court are technically in the public domain, the litigant or solicitor in possession of the document itself is at a considerable advantage over those who merely had access to notes or transcripts of what was said. We suggest that these matters should be considered in the course of the current study of the Law Commission's report and draft Bill, on which there appears to be a reasonable prospect of early legislation". Those are very shrewd words by the Law Society. They are pretty good stuff. When I am threatened with the European Convention I cannot complain of course because I did exactly the same to the noble and learned Lord, Lord Elwyn-Jones, over the closed shop, and it turned out I was correct in my prognosis. I cannot predict what the Strasbourg court will say, but I must say this at any rate that Article 10 of the convention expressly protects the disclosure of information received in confidence, or for maintaining the authority or impartiality of the judiciary. I would not be even so doubtful as the noble and learned Lord, Lord Gardiner, about what the Strasbourg court might say if in one form or another—it may be in this or in some other form—they should attempt to litigate if this point were brought to them.

The amendment does not apply to Scotland in terms, but would it not be a good thing to consider whether, and to what extent, the Scottish law should be the same as ours in that respect? It does emphatically apply to criminal proceedings, but it is just there that it would, in my judgment at any rate, be least valuable because there is no discovery in criminal proceedings.

What I should like to say to the noble Lord is that it is pretty clear to me that this is a fairly difficult matter. I had promised to look into it when the litigation was over, and it has been over for only six weeks or so. The chairman of the Law Reform Committee is none other than one of the two noble and learned Lords who were party to the dissenting judgment. I really think that I am not going too far when I ask the Committee, now having spoken for some time myself—it is now 81 minutes since we started—to allow me to keep my promise and not to pass an amendment which will prevent me from keeping it.

Lord Mishcon

We have had an example tonight, if I may say so, of the loss to the Bar when the noble and learned Lord decided to leave the arena and grace the Woolsack. He accused—I do not think it was meant really as an accusation—the noble Lord, Lord Hutchinson, of addressing this Committee as though it were a jury. But I have never heard such a magnificent jury display in my life, coupled with the fact that the noble and learned Lord did something that many advocates cannot do; he made his jury laugh in the course of a serious speech.

However, we have to get back to the reality of this amendment. The noble and learned Lord pleaded for time in order that he might consider whether the law of England and Wales and Northern Ireland should become the same as the law of Scotland. When I was begging of him a week ago in regard to another Bill for which he was responsible to please consider that the law of Scotland was rather different and was in accordance with my amendment, with great fortitude and terrific eloquence he persuaded the House that it was a nonsensical point; that Scotland kept their own law and it was right that they should, and it was quite ridiculous for me to assume that the law of Scotland should be the same as the law of England in this respect. So you see yet another example of a wonderful advocate and what he can do from week to week in regard to the arguments that he presents.

If I may, as the time is late, I should like to emphasise the points that are made here. It is not a question of the sensitivity of Mr. Smith and Mr. Robinson in any proceedings. Indeed, their sensitivity is unfortunately outraged at the present moment in civil litigation because if a reporter happened to be in court, as has been mentioned, and takes down the confidential document, he is at perfect liberty to print what he likes, publish what he likes, subject obviously to what he may say and the law of defamation. If, however, he is not quite certain that he has got it accurately and goes up to the solicitor and says, "Your counsel read out in open court a document. I like being an accurate journalist; I like being a truthful man. I do not want to be unfair. Could I please check the contents of this document with you?" He cannot do it. Hardly in protection, you may think, of either Mr. Robinson or Mr. Smith, or the great idol of truth and accuracy that we all try to worship in our profession of the law and I hope in the ordinary conduct of our business.

It is even absurd to this extent, if I might make the point that I do not think has been made before—I am not going through the various parties who might come up by way of newspaper people to the advocate—if the solicitor happens to have a transcript subsequent to the court proceedings, because you cannot imagine that he has got the transcript in front of him at the court proceedings unless it be in respect of a previous day's hearings, and if he shows the transcript which quotes the document, he is in accordance with the law—I am sure that the noble and learned Lord would confirm this —and is doing something that is absolutely in order. But if he does not take it from the transcript but refers to the bundle of correspondence in the case, then indeed he is doing something according to the majority decision of the House of Lords sitting in the Committee of your Lordships' House in their judicial capacity.

It is not by way of being offensive to any judges who have looked at this matter; it is not in the case of Harman that we are talking about this amendment tonight; that is purely a case that happens to have highlighted something that needs reform. The noble and learned Lord will go down in history as a great Lord Chancellor and as somebody who, I am sure, likes to have the law in a state which commands the respect of everyone, and he wants to put a house in order. Sometimes he finds it difficult with his colleagues to let him have the amount of time that he ought to have in order to amend the law when it needs amending. I suggest to your Lordships that tonight we assist the noble and learned Lord by passing this amendment, and seeing to it that his glorious history is carried one stage further to put the law right as I know he would want it to be.

9 p.m.

Lord Gifford

My first and least pleasant task at the end of this excellent debate is to answer the extraordinary attack made by the noble and learned Lord, Lord Rawlinson, on those who had conduct of the case against the Home Office out of which the Harman case arose. His attack was launched principally against the advocate who read out the documents in the case and it was implied that that barrister was guilty of tricks and manoeuvres in order to get into the public domain things which otherwise would not have been. The noble and learned Lord knows full well that the trial judge in any case has the right and duty to exclude from public hearing—to exclude, be they in the form of questions or documents—matters which are irrelevant to the issues in the case.

Is the noble and learned Lord aware that no protest was raised by the Home Office that irrelevant documents were being read out and that no attempt was made by the trial judge in the Williams case to stop Mr. Sedgeley, the barrister, opening it, from reading the documents which later became the subject of the Harman case? In the light of that, I invite him to withdraw the allegation he made against that counsel. I see that the noble and learned Lord remains in his place, and I continue only to answer one other matter which he raised about Miss Harman, implying that her disclosure of the documents was without any authority. That is not the case. She, like any other solicitor, had no business to be talking to the press unless she had her client's authority, and she had it; so that attack also was unfounded and should be withdrawn.

The main point made by the noble and learned Lord the Lord Chancellor in answer was that the process of discovering documents leading to publication in a court of law could be damaging to people's privacy and feelings. Of course, it can. So can the evidence which comes out in a court of law. But what those of us who support the amendment are defending is the public quality of trials in courts, and we cannot allow some kind of censorship to operate between matters which can be disclosed once they have been published in a court of law and matters which cannot be.

Many noble Lords have made play of the different kinds of law reporter, and perhaps a further example is relevant from my responsibility and experience. As the Lord Chancellor knows, I am chairman of a group called the Legal Action Group, which publishes a bulletin. It has grey pages, which seek to edify the legal profession by reporting on the law, and it has white pages, in which there are feature articles about the law. If the Legal Action Group reporter were in court it would be difficult, even for the noble Lord, Lord George-Brown, to say whether he was a law reporter or feature writer when he was listening to the trial.

The main point that has come out of this debate is that many of your Lordships are deeply worried about the image of a law as it has emerged from the House of Lords on this issue, and I do not repent having made disrespectful comments about the quality of judgment of those judges and noble and learned Lords who found for the Home Office. I am heartened by the sense that many noble Lords feel—for example, the noble Lord, Lord Hunt, and my noble friend Lady Jeger—that the judges really have made an ass of themselves in this case and brought the law into disrepute. That is why those of us who support the amendment wish to have the issue overturned with the minimum of delay.

Having said that, I come to the plea of the Lord Chancellor that he would wish to have time to look at all the implications of the issue. Of course, he should look at all those implications, but let him look at them, we having passed the amendment as if the minority in the House of Lords had been the majority, and then let him and us see whether any change in the law is needed. With an amendment which is clear in its terms and which nobody has denied would have the effect of putting the law into the position which the minority in the House of Lords would wish to see it put, let that be the law and then, if there be any further need for examination, let that be done thereafter. There is no need for delay. The issue is not obscure and I ask your Lordships to vote for the amendment.

9.5 p.m.

On Question, Whether the said amendment (No. 52) shall be agreed to?

Their Lordships divided: Contents, 44; Not-Contents, 44.

DIVISION No. 1
CONTENTS
Airedale, L. Glenamara, L.
Amherst, E. Hacking, L.
Ardwick, L. Harris of Greenwich, L.
Avebury, L. Houghton of Sowerby, L.
Aylestone, L. Hunt, L.
Bishopston, L. Hutchinson of Lullington, L.
Blease, L. Jacobson, L.
Boston of Faversham, L. Jeger, B.
Brockway, L. Jenkins of Putney, L.
Collison, L. John-Mackie, L.
David, B. [Teller] Lee of Asheridge, B.
Davies of Leek, L. Llewelyn-Davies of Hastoe, B.
Gardiner, L.
Gifford, L. Lockwood, B.
McGregor of Durris, L. Sefton of Garston, L.
McNair, L. Stewart of Alvechurch, B.
Mishcon, L. Stewart of Fulham, L.
Monson, L. Underhill, L.
Ogmore, L. Wade, L.
Oram, L. Wedderburn of Charlton, L.
Pitt of Hampstead, L. Wilson of Langside, L.
Ponsonby of Shubrede, L. [Teller] Winstanley, L.
Wynne-Jones, L.
NOT-CONTENTS
Airey of Abingdon, B. Hylton-Foster, B.
Aldenham, L. Inglewood, L.
Avon, E. Lindsey and Abingdon, E.
Beloff, L. Long, V. [Teller]
Belstead, L. Lyell, L.
Cathcart, E. Mackay of Clashfern, L.
Cockfield, L. Macleod of Borve, B.
Cork and Orrery, E. Mansfield, E.
Cullen of Ashbourne, L. Marshall of Leeds, L.
De La Warr, E. Mersey, V.
Denharn, L. [Teller] Monckton of Brenchley, V.
Drumalbyn, L. Monk Bretton, L.
Elton, L. Mottistone, L.
Ferrers, E. Murton of Lindisfarne, L.
Fortescue, E. Newall, L.
Gainford, L. Rawlinson of Ewell, L.
George-Brown, L. Renton, L.
Glanusk, L. Rochdale, V.
Glasgow, E. Sandys, L.
Glenarthur, L. Skelmersdale, L.
Grimston of Westbury, L. Stanley of Alderley, L.
Hailsham of St. Marylebone, L. Trumpington, B.
The Deputy Chairman of Committees (Lord Hayter)

There have voted, Contents, 44; Not-Contents, 44.

There being an equality of votes, in accordance with Standing Order No. 53, which provides that no proposal to amend the Bill in the form in which it is before the Committee shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.

9.13 p.m.

Clauses 61 to 64 agreed to.

Clause 65 [Transitional provisions and savings]:

The Lord Chancellor moved Amendment No. 53: Page 35, line 19, after ("or") insert ("paragraphs 2 to 10 of").

The noble and learned Lord said: This is a drafting amendment to resolve an inconsistency between subsection (1) of Clause 65 and subsection (9) of the same clause. I beg to move.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 54: Page 35, line 21, leave out ("above").

The noble Lord said: I feel it almost impertinent to put this amendment to the Committee, but do we need the word, "above"? It is most unusual (is it not?) when referring to a section of an Act; it obviously is above. I beg to move.

The Lord Chancellor

I had better read out my brief. I hope it will make the noble Lord laugh, because it makes me laugh. This is a drafting amendment suggested by the Law Society, which claims that "above" in Clause 65(2) is superfluous. The use of the expression "Section 6 above" is a standard draftsman's device. Practice in this respect varies between draftsmen, and some no longer use "above" and "below", which is the more traditional method. If the present amendment were made to Clause 65(2), similar amendments would have to be made throughout the Bill; for instance, in Clause 39(2) and (5), Clause 40(1), Clause 42(3), Clause 44(1), and so on. Such an exercise would be pointless.

That, I think, is all I need read. I do not think the Government will fall if this amendment is passed, but I hope the noble Lord will withdraw it.

Lord Mishcon

My Lords, having proposed this earth-shaking amendment and having heard the earthshaking reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Viscount Long moved Amendment No. 55: Page 35, line 37, after ("Act") insert ("other than the repeal of section 5 of the Damages (Scotland) Act 1976").

The noble Viscount said: This amendment gives effect to a subsidiary recommendation of the Scottish Law Commission Report No. 64. The new rules of court which will replace Section 5 of the 1976 Act will come into operation immediately this Act comes into operation, even in relation to those actions which are in progress and have been started on the basis of the present Section 5. It has been considered that, since the proposed reform is purely procedural, the usual rule, that actions which are in progress should be completed under the old law, is not appropriate.

The amendment will mean, moreover, that a good deal of abortive work can be avoided. I daresay solicitors faced with the formidable task of tracing relatives under Clause 5 will breath a sigh of relief when the commencement date of the new rules of court is announced. I beg to move.

On Question, amendment agreed to.

Clause 65, as amended, agreed to.

Clause 66 agreed to.

On Question, Whether Clause 67 shall stand part of the Bill?

Lord Renton

At this stage I apologise for uttering a word at all, but, even though I cannot expect a reply, I should like to draw attention to the really rather unsatisfactory method of bringing so many different provisions of the Bill into operation in so many different ways. This clause seems to me to be an unnecessarily complex one, and I hope that on future occasions, at any rate, Parliamentary Counsel will endeavour to advise Ministers to bring their Bills into operation in a less complex manner.

The Lord Chancellor

I thank my noble friend. I am sure Parliamentary Counsel will take to heart his wise and prudent remarks, but, as he rather anticipated, I cannot go into any detail at this moment.

On Question, Motion agreed to.

Clause 68 [Extent]:

The Lord Chancellor moved Amendment No. 56: Page 38, line 21, at beginning insert ("Subject to subsection (6) below,").

The noble and learned Lord said: This is a very minor drafting amendment, which makes it clear that Clause 68(1) is subject to Clause 68(6). I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 57: Page 39, line 4, leave out from ("or") to ("extends") in line 5 and insert ("amended or instrument revoked by this Act extends to any part of the United Kingdom, the repeal, amendment or revocation").

The noble and learned Lord said: This is a drafting amendment to prevent any ambiguity. I beg to move. On Question, amendment agreed to.

Clause 68, as amended, agreed to.

Clause 69 agreed to.

Schedule 1 [Citation]:

The Lord Chancellor moved Amendment No. 58: Page 40, line 6, leave out ("where there are") and insert ("in").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 59: Page 40, line 9, leave out from beginning to ("for") in line 28 and insert ("there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as rules of court may provide, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment,").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 60: Page 40, line 31, leave out second ("the") and insert ("any").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 61:

Page 40, line 34, at end insert—

("(1A) In relation to a judgment given for damages for personal injuries or death which exceed £200 subsection (1) shall have effect—

  1. (a) with the substitution of "shall be included" for "may be included"; and
  2. (b) with the additon of "unless the court is satisfied that there are special reasons to the contrary" after "given", where first occurring.").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 62: Page 41, line 14, at end insert ("and personal injuries' includes any disease and any impairment of a persons' physical or mental condition.").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 63: Page 41, leave out lines 17 to 38.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 64: Page 41, line 42, leave out ("where there are") and insert ("in").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 65: Page 41, line 45, leave out from beginning to ("for") in page 42 line 18 and insert ("there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as county court rules may provide, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment,").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 66: Page 42, line 21, leave out second ("the") and insert ("any").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 67:

Page 42, line 24, at end insert—

("(1A) in relation to a judgment given for damages for personal injuries or death which exceed £200 subsection (1) above shall have effect—

  1. (a) with the substition of "shall be included" for "may be included"; and
  2. (b) with the addition of "unless the court is satisfied that there are special reasons to the contrary" after "given", where first occurring.").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 68: Page 42, line 40, leave out ("included") and insert ("calculated").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 69: Page 42, line 45, at end insert ("and personal injuries' includes any disease and any impairment of a person's physical or mental condition.").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 70: Page 43, leave out lines 4 to 27.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 70A: Page 43, line 33, leave out from ("words") to ("of") in line 34 and insert (""Section 35A of the Supreme Court Act 1981 and section 97A").

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 agreed to.

Schedule 3 [Monetary limits of county court jurisdiction]:

The Lord Chancellor moved Amendments Nos. 71 to 74:

Page 47, line 40, leave out ("county court costs in High Court") and insert ("costs of actions in High Court for small claims").

Page 47, line 41, leave out ("no costs in High Court") and insert ("costs of actions in High Court to recover goods of small value").

Page 49, line 4, leave out ("(c)").

Page 49, line 5, after (""section"") insert (",in the first place where it occurs,").

The noble and learned Lord said: I wish to move Amendments Nos. 71 to 74. They are all drafting amendments to correct minor inaccuracies. I beg to move.

On Question, amendments agreed to.

Schedule 3, as amended, agreed to.

The Lord Chancellor moved Amendment No. 75: After Schedule 3, insert the following new schedule:

("Administrative and clerical expenses of garnishees

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